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the  ppesence  of  this  Book 


thej.m.  kelly 
has  Been  made  possiBle 
thpouqh  the  qeneposity 


Stephen  B.  Roman 

From  the  Library  of  Daniel  Binchy 


GAI 
INSTITVTIONES 


OR 


INSTITUTES  OF  ROMAN  LAW 
BY  GAIUS 


WITH  A  TRANSLATION  AND  COMMENTARY 

BY   THE   LATE 

EDWARD  POSTE,  M.A. 

FOURTH   EDITION,    REVISED  AND  ENLARGED  BY 

E.  A.  WHITTUCK,  M.A.,  B.C.L. 


WITH  AN   HISTORICAL   INTRODUCTION  BY 

A.  H.  J.  GREENIDGE,  D.Lrrr. 


OXFORD 
AT    THE    CLARENDON    PRESS 

MDCCCCIV 


HENRY   FROWDE,    M.A. 

PUBLISHER   TO  THE  UNIVERSITY   OF   OXFORD 

LONDON,    EDINBURGH 

NEW   YORK 


PREFACE 

THE  death  of  the  author  of  this  Commentary  and  Translation 
has  taken  from  us  one  who  in  the  intervals  allowed  him  by 
his  official  duties  gave  himself  with  single-minded  devotion  to 
the  acquisition  and  furtherance  of  knowledge.  '  Omnium,  quos 
cognovi,  doctissimus '  were  the  words  in  which  Mr.  Poste's  great 
erudition  was  commemorated  by  the  Vice-Chancellor  of  the 
University,  the  distinguished  head  of  the  distinguished  College 
of  which  Mr.  Poste  was  almost  the  senior  Fellow  ;  and  certainly 
no  one  can  read  this  Commentary  without  being  impressed 
by  the  writer's  philosophic  spirit  and  extensive  learning.  It 
is  especially  remarkable  that  a  scholar,  who  was  never  engaged 
in  the  teaching  or  practice  of  law,  should  have  produced 
a  legal  textbook,  which  perhaps  more  than  any  other  makes 
intelligible  to  English  students  the  teaching  of  the  great  German 
masters  of  Roman  jurisprudence  and  at  the  same  time  never  fails 
.to  be  interesting  by  reason  of  its  own  force  and  individuality. 

In  re-editing  this  well-known  work,  at  the  request  of  Mr.  Poste's 
executors  and  of  the  Delegates  of  the  Clarendon  Press,  my 
endeavour  has  been  to  preserve  as  far  as  possible  the  character 
which  Mr.  Poste  himself  gave  it,  while  making  such  alterations 
as  seemed  to  be  required  at  the  present  time.  As  Mr.  Poste 
never  revised  his  Translation  and  Commentary  with  any  com- 
pleteness since  they  were  first  published,  their  revision  for  this 
edition  has  been  a  more  considerable  undertaking  than  would 
otherwise  have  been  the  case.  '  It  should  be  noticed  that  the 
part  of  the  Commentary  relating  to  analytic  jurisprudence  has 
been  much  curtailed  in  the  present  edition.  This  has  been  done 
by  the  advice  of  persons  engaged  in  the  teaching  of  Roman 
law  at  Oxford,  who  are  of  opinion  that  the  insertion  of  so  much 
matter  bearing  on  the  general  theory  of  law  has  rendered  the 
Commentary  unnecessarily  difficult  to  students  and  that  the 
subject  is  one  better  left  to  independent  treatises.  The  omission 
of  the  Preliminary  Definitions  on  this  account  has  made  it 
possible  to  introduce  into  the  book  an  Historical  Introduction 
to  Gaius,  which  has  been  written  by  Dr.  Greenidge,  who  is  well 


ii  PREFACE 

known  for  his  writings  on  Roman  constitutional  history,  and  for 
his  special  Treatises  on  '  Infamia '  and  on  '  The  Legal  Procedure 
of  Cicero's  Time.' 

The  text  of  Gaius  adopted  is  that  of  the  last  edition  of  Krueger 
and  Studemund,  which  its  German  proprietors  have  again  most 
kindly  allowed  us  to  use.  In  this  text  the  numerous  lacunae 
are  only  filled  up,  where  from  passages  in  the  Institutes  or  other 
sources  the  missing  words  may  be  inferred,  at  least  with  a  very 
high  degree  of  probability.  Some  other  conjectural  readings, 
more  or  less  followed  in  the  Translation,  will  be  found  in  the 
Appendix.  It  is  to  be  hoped  that  in  some  future  edition  of 
this  book  a  Critical  Apparatus  may  be  supplied  by  a  competent 
hand.  In  the  meantime  the  student  should  more  especially  refer 
to  the  notes  on  the  text  appended  to  Krueger's  and  Studemund's 
Gaius.  He  may  also  consult  with  advantage  the  notes  to  the 
late  Professor  Muirhead's  edition  of  Gaius,  though  the  valuable 
textual  criticism  to  be  found  there  requires  revision  in  the  light 
of  more  recent  research. 

In  conclusion,  I  have  to  express  my  obligations  to  my  old 
friend  and  pupil  Mr.  Ledlie,  the  translator  of  Sohm's  Institutes, 
for  many  helpful  suggestions.  Another  old  friend  and  pupil, 
Dr.  Potts,  has  also  rendered  me  valuable  aid,  especially  in  the 
preparation  of  the  Index  and  of  the  Chronological  Table.  My 
friends  Dr.  Schuster  and  Dr.  Greenidge  have  given  me  useful 
information  on  several  points  about  which  I  have  consulted 
them. 

E.  A.  WHITTUCK. 

CLAVERTON  MANOR,  BATH, 
October  17,  1904. 


CONTENTS 


HISTORICAL  INTRODUCTION          .... 

BOOK  I 
STATUS  OR  UNEQUAL  RIGHTS  [DE  PERSONIS] 


PAGE 

ix-lv 


SECTION 

1-7 


9-12 


13-47 

48-50 

51-54 

55-107 

108-1156 

116-123 

124-141 


142-196 
197-200 


SOURCES  OR  ORIGINS  of  law,  or  various  ORGANS  of 
legislation.  CIVIL  law,  and  NATURAL  law  .  .  .  1-13 

DIVISIONS  OF  LAW 13-18 

The  subjects  of  the  Civil  Code  are 

(1)  UNEQUAL  RIGHTS  (PERSONAE,  Book  I) ; 

(2)  EQUAL  RIGHTS  (RES,  Books  II  and  III)  ; 

(3)  PROCEDURE  (ACTIONES,  Book  IV). 

STATUS  or  INEQUALITY  of  rights  divides  the  members 
of  society  into  nine  classes :  the  Freeborn,  the  Freedman, 
the  Slave  ;  the  Citizen,  the  Latin,  the  Alien  ;  the  Father  of 
the  household,  the  Son  of  the  household,  the  Bondsman  .  18-20 

FREEDMEN          ....  ....  20-35 

Dependent  and  Independent  Persons 35 

SLAVES  .     it 36-39 

PATERNAL  POWER,  the  modes  in  which  it  originates        .  39-66 

MARITAL  POWER,  the  modes  in  which  it  originates  .        .  66-73 

BONDAGE,  the  mode  in  which  it  originates    ....  74-78 

Modes  in  which  PATERNAL  POWER,  MARITAL  POWER, 
and  BONDAGE  are  terminated 78-87 

INEQUALITIES  among  those  who  are  INDEPENDENT 
(Fathers  of  their  household). 

GUARDIANSHIP,  classes  and  modes  in  which  it  originates 

and  terminates 87-113 

CURATORS   .  114-116 


IV 


CONTENTS 


SECTION 


BOOK  II 
EQUAL  RIGHTS  [DE  REBVS]. 

PAGE 

EQUAL  EIGHTS  are 

(1)  SINGLE  (RES  SINGVLAE); 

(2)  COLLECTIVE  (IVRVM  VNIVERSITATES). 

Single  rights  are 

(1)  REAL  (IVS  IN  REM); 

(2)  PERSONAL  (IVS  IN  PERSONAM). 

Real  rights  are  (not  to  mention  PRIMORDIAL  rights) 

(1)  UNLIMITED  (DOMINIVM  or  OWNERSHIP)  ; 

(2)  LIMITED  (SERVITVS  or  SERVITUDE). 

SINGLE  RIGHTS  (RES  SINGVLAE),  and  in  the  first  place 
the  REAL  RIGHTS  of  OWNERSHIP  and  SERVITUDE 
(one  branch  of  RES  SINGVLAE). 

Divisions  of  RES 122-128 

TITLES  or  facts  originative  of  REAL  rights,  whether 
OWNERSHIP  OR  SERVITUDE  .  .  .  128-163,  164-168 

Ownership  without  power  of  alienation,  and  power  of  alienation 
without  ownership 163,  168 

Alienation  by  WARDS 169-170 

INSTRUMENTS  of  Acquisition  of  Real  rights        .        .        .     170-175 
COLLECTIVE  RIGHTS  [IVRVM  VNIVERSITATES]. 
The  TITLES  by  which  a  person  is  invested  with  Collective 
rights,  in    other   words,   the    TITLES    of   UNIVERSAL 
SUCCESSION,  are  five,  Testamentary  disposition,  Intestacy, 
Insolvency,  Adrogation,  and  Manus  or  Marital  power   .         .175 

101-190      WILLS .     176-226 

191-245      LEGACIES.     Legacies  are  Titles  to  RES  SINGVLAE,  but 

are  introduced  in  this  place  as  being  accessory  to  WILLS    .     226-246 
FIDUCIARY  BEQUESTS. 
246-259      COLLECTIVE  FIDUCIARY  BEQUESTS   ....     246-258 

260-289  SINGLE  FIDUCIARY  BEQUESTS,  though  examples  of 
RES  SINGVLAE,  are  introduced  in  this  place  as  being 
accessory  to  Wills 258-268 


1-14 
14a-79 

62-64 

80-85 
86-96 
97-100 


BOOK  III 

INTESTACY  or  title  by  DESCENT. 
1-38        ORDER  of  Intestate  Succession       . 
89-76        Successions  to  FREEDMEN,  testate  and  intestate  . 


269-283 
283-300 


CONTENTS  v 

SECTION  PAGE 

77-87        Successions  by  INSOLVENCY,  ADEOGATION,  MARITAL 

POWER,  transfer  of  Inheritance 301-315 

PERSONAL  RIGHTS,  or  OBLIGATIONS  [the  other  branch 
of  RES  SINGVLAE],  and  their  TITLES. 

88-162      Obligations  founded  on  CONTRACT 315-387 

163-167      INSTRUMENTS  of  acquiring  Obligation        ....  387-389 

168-181      EXTINCTION  of  Obligation   .        . 389-401 

182-225      Obligations  founded  on  DELICT 402-431 

ADDENDUM                                                           .        .        -  432-441 


BOOK  IV 

PROCEDURE  [DE  ACTIONIBVS]. 


1-9          CLASSIFICATION  of  Actions 

10-29  STATUTE-PROCESS  or  ANCIENT  method  of  Procedure      . 

30-38        FORMULARY  Procedure,  FICTION 

39-68        Component  parts  of  the  FORMULA 

69-81  ACTIONS  on  account  of  the  Contracts  and  Delicts  of  others     . 

82-87  REPRESENTATION  of  the  principal  parties  to  an  action      . 

88-102  SECURITIES  to  be  given  by  the  parties  to  an  action 

103-109  STATUTORY  actions. 

NON-STATUTORY  actions,  or  actions  founded  on  the  executive 
authority  of  the  Praetor         ....... 

110-113  PERPETUAL  actions,  or  actions  which  can  be  instituted  at 
any  date  from  their  nativity  (in  later  times  within  twenty 
or  thirty  years  from  their  nativity),  and  TEMPORARY 
actions,  or  actions  that  must  be  instituted  within  a  certain 
date  (usually  a  year)  from  their  nativity.  Actions  TRANS- 
MISSIBLE or  NOT-TRANSMISSIBLE  to  the  heirs  of  the 
principal  parties 

114    Title  of  defendant  subsequent  to  Li'tis  contestatio 

115-137  NEGATION  and  EXCEPTION,  or  NULLITY,  NULLIFI- 
CATION, COLLISION,  of  rights 

138-170     INTERDICT  and  POSSESSION  and  DETENTION      . 

171-187     VEXATIOUS  litigation.  Actions  which  carry  infamy.  Summons 
and  security  for  reappearance 

APPENDIX 


442-454 
454-470 
470-480 
480-515 
515-524 
524-527 
527-534 


534-544 


INDEX 


544-554 
554-555 

555-581 
582-620 

620-623 

629 

633 


EXPLANATION    OF    ABBREVIATIONS 

Inst.  Institutes  of  Justinian. 

Dig.  Digest  or  Pandects  of  Justinian. 

Cod.  Code  of  Justinian. 

Nov.  Novellae  Constitutiones  or  Novels  of  Justinian. 

The  meaning  of  the  numbers  that  follow  these  abbreviations  will  be  obvious 
to  any  one  who  opens  a  volume  of  the  Corpus  Juris. 

Pr.  stands  for  principio,  meaning,  in  the  first  paragraph  of  a  title  of  the 
Institutes,  or  of  a  fragment  of  a  title  of  the  Digest,  or  of  a  '  lex '  of  a  title 
of  the  Code. 

The  Commentaries  of  Gaius  are  referred  to  by  numbers  indicating  the  book 
and  the  paragraph:  e.g.  2  §  5,  indicates  the  5th  paragraph  of  Book  2. 
When  the  reference  is  to  another  paragraph  in  the  same  book,  the  book 
is  omitted. 

When  Ulpian  or  Paulus  are  quoted,  the  works  referred  to  are  the  Ulpiani 
Fragmenta  or  Excerpta  ex  Ulpiani  Libro  singulari  Regularum,  and  the 
Sententiae  Receptae  of  Paulus. 

Fragm.  Vat.    Fragmenta  Juris  Romani  Vaticana. 

(For  the  Jus  antejustinianum  see  Huschke's  or  Krueger's  Collections  of 
ante-Justinian  legal  writings.) 

When  Savigny,  Vangerow,  Keller,  Bethmann-Hollweg,  Ihering,  Kuntze, 
Windscheid,  Dernburg,  Lenel,  Sohm,  Muirhead,  and  Robyare  simply  cited, 
the  references  are  to  Savigny,  System  des  heutigen  romischen  Rechts ; 
Vangerow,  Lehrbuch  der  Pandekten ;  Keller,  Der  rSmische  Civilprocess 
und  die  Actionen  ;  Bethmann-Hollweg,  Der  romische  Civilprozess ; 
Ihering,  Geist  des  rOmischen  Rechts  auf  den  verschiedenen  Stufen  seiner 
Entwicklung ;  Kuntze,  Institutionen  und  Geschichte  des  romischen 
Rechts ;  Windscheid,  Lehrbuch  des  Pandekten-Rechts ;  Dernburg,  Pan- 
dekten ;  Lenel,  Das  Edictum  Perpetuum,  ein  Versuch  zu  dessen  Wieder- 
herstellung;  Sohm,  The  Institutes — A  Text-book  of  the  History  and 
System  of  Roman  Private  Law  (translated  by  J.  C.  Ledlie),  2nd  ed. ; 
Muirhead,  Historical  Introduction  to  the  Private  Law  of  Rome,  2nd  ed. ; 
Roby,  Roman  Private  Law  in  the  times  of  Cicero  and  of  the  Antomnes. 


CHRONOLOGICAL  TABLE 


B.C. 

753  Traditional  Date  of  Foundation  of 

Home. 

578-535  Servius  Tullius.  Division  into 
thirty  Tribes.  Military  Organi- 
zation of  Centuries.  Institution 
of  Census. 

509  Office  of  Consuls  instituted. 
494  First  Secession  of  Plebs.    Institu- 
tion of  Tribuni  Plebis. 
451-448  Law  of  the  Twelve  Tables. 
449  Second  Secession  of  Plebs — 

Leges  Valeriae  Horatiae. 
445  Lex  Canuleia,  legalizing  marriages 
between    Patricians     and    Ple- 
beians. 

443  Censorship  established. 
366  Office  of  Praetor  established. 
326  Lex  Poetelia  about  this  time. 
304  Cnaeus   Flavius   publishes   forms 
of  actions  and  calendar  of  dies 
fasti  and  nefasti. 
300  Lex  Ogulnia,  admitting  Plebeians 

to  College  of  Pontiffs. 
287  Last  Secession  of  Plebs — 
Lex  Hortensia. 
Lex  Aquilia. 

280  Tiberius       Coruncanius      (subse- 
quently first  Plebeian  Pontifex 
Maximus),  Consul. 
242  First   appointment   of  a    Praetor 

Peregrinus  about  this  time. 
204  Lex  Cincia. 

198  Sextus     Aelius    Paetus     (earliest 
commentator    on    the    Twelve 
Tables),  Consul. 
170-150  Lex  Aebutia  probably  enacted 

within  this  period. 
169  Lex  Voconia. 
105  P.  Butilius  Rufus,  Consul. 
95  Q.     Mucius     Scaevola     (pontifex), 

Consul. 

92  Sulla,  Dictator. 
89  End  of  Social  War. 

Leges  Corneliae. 
66  C.  Aquilius  Gallus,  Praetor. 
63  Cicero,  Consul. 
59  Julius  Caesar,  Consul. 
51  Servius  Sulpicius,  Consul. 
49  Accession     of    Julius     Caesar     to 
supreme  power. 

Lex  Rubria. 

45  Lex  Julia  municipalis. 
44  Assassination  of  Caesar. 
40  Lex  Falcidia. 


27  Caesar  Octavianus  receives  title  of 
Augustus  (first  Constitution  of 
the  Principate). 
23  Second  and  final  Constitution  of  the 

Principate. 
27-14  A.  D.  Principate  of  Augustus. 
M.  Antistius  Labeo. 
C.  Ateius  Capito. 

18  Lex    Julia    de    adulteriis    et    de 

maritandis  ordinibus. 

A.  D. 

4  Lex  Aelia  Sentia. 

6  Lex  Julia  de  vicesima  hereditatium. 

9  Lex  Papia  Poppaea. 

14-37  Tiberius,  Emp. 

Masurius  Sabinus. 

Proculus. 

19  Date  to  which  Lex  Junia  (Norbana) 

is  generally  ascribed. 
30  C.  Cassius  Longinus,  Consul. 
37-41  Caligula,  Emp. 
41-54  Claudius,  Emp. — 
Lex  Claudia. 
S.  C.  Claudianum. 
46  S.  C.  Vellaeanum  or  Velleianum. 
54-68  Nero,  Emp.— 

S.  C.  Neronianum. 
62  S.  C.  Trebellianum. 
68  Galba,  Emp. 

Vitellius,  Emp. 
68-79  Vespasian,  Emp. 
70  S.  C.  Pegasianum. 
79-81  Titus,  Emp. 
81-96  Domitian,  Emp. 
96-98  Nerva,  Emp. 
98-117  Trajan,  Emp. 
117-138  Hadrian,  Emp. 

Edictum  Perpetuum  of  Salvius 

Julianus. 
138-161  Antoninus  Pius,  Emp. 

First  and  part  of  second  book 
of  Gaius  probably  written 
at  this  time. 

161-180  M.  Aurelius  Antoninus,  Emp. 
Institutes  of  Gaius  probably 
completed  under  this  Em- 
peror. 

178  S.  C.  Orfitianum. 
180-193  Commodus,  Emp. 
193  Pertinax  and  Julianus  successively 

Emperors. 

193-211  Septimius  Severus,  Emp. 
204  Papinian,  praefectus  praetorio. 


Vlll 


CHRONOLOGICAL  TABLE 


A.  D. 

211-217  Caracalla,  Emp.— 
Papinian  killed. 
Edict  of  Caracalla — extending 

citizenship. 

217-218  Macrinus,  Emp. 
218-222  Elagabalus,  Emp. 
222-235  Severus  Alexander,  Emp. 
222  Ulpian,  praefectus  praetorio. 
228  Ulpian  killed. 
235-238  Maximinus,  Emp. 
238  Gordianus  I  and  II,  Emp. 
238-244  Gordianus  III,  Emp. 
244-249  Philippus,  Emp. 
249-251  Decius,  Emp. 
251-253  Trebonianus  Gallus,  Emp. 
253  Aemilianus,  Emp. 
253-260  Valerian  and  Gallienus,  joint 

Emperors. 

260-268  Gallienus,  sole  Emperor. 
268-270  Claudius  II,  Emp. 
270-275  Aurelian,  Emp. 
275-276  Tacitus,  Emp. 
276  Florianus,  Emp. 
276-282  Probus,  Emp. 
282-283  Cams,  Emp. 
283-284  Carinus     and     Numerianus, 

joint  Emperors. 
285  Carinus,  sole  Emperor. 
285-286  Diocletian,  sole  Emperor. 


A.  D. 

286-305  Diocletian  and  Maximian, 
joint  Emperors. 

305-306  Constantius  I  and  Galerius, 
joint  Emperors. 

306  Constantius  I,  Galerius,  and  Con- 
stantino the  Great,  joint  Em- 
perors. 

307-311  Galerius,  Constantine  the 
Great,  and  Licinius,  joint  Em- 
perors. 

311-323  Constantine  the  Great  and 
Licinius,  joint  Emperors. 

323-337  Constantine  the  Great,  sole 
Emperor. 

330  Constantinople,  the  seat  of  govern- 
ment. 

337-340  Constantius  II,  Constan- 
tine II,  and  Constans  I,  joint 
Emperors. 

340-350  Constantius  II  and  Constans  I, 
joint  Emperors. 

350-361  Constantius  II,  sole  Emperor. 

361-363  Julian,  Emperor. 

363-364  Jovian,  Emperor. 

364  Valentinian  I  and  Valens,  joint 
Emperors.  They  divided  the 
Empire  into  the  Western  and 
Eastern. 


A.D.  WESTERN  EMPIRE.  A,  D.  EASTERN  EMPIRE. 

364-367  Valentinian  I,  Emp.  364-378  Valens,  Emp. 

367-375  Valentin ian  I  and  Gratian,  Emp.  378-392  Theodosius  I,  Emp. 

375-383  Gratian  and  Valentinian  II,  Emp. 

383-392  Valentinian  II,  sole  Emperor. 

392-395  Theodosius  I,  Emperor  of  East  and  West. 

395-423  Honorius,  Emp.  395-408  Arcadius,  Emp. 

408-423  Theodosius  II,  Emp. 
423-425  Theodosius  II,  Emperor  of  East  and  West. 


425-455  Valentinian  III,  Emp. 
426  Law  of  Citations. 
439  Codex  Theodosianus. 
455  Petronius  Maximus,  Emp. 

Sack  of  Rome  by  the  Vandals. 
455-456  Avitus,  Emp. 
457-461  Major  ian,  Emp. 
461-467  Government    practically     in 
hands  of  the  barbarian  Ricimer. 
467-472  Anthemius,  Emp. 
472  Olybrius,  Emp. 
472-475  Julius  Nepos,  Emp. 
475-476  Romulus  Augustulus,  Emp. 
End  of  Western  Empire. 


500  Lex  Romana  Burgundionum. 
506  Lex    Romana    Visigothorum,    or 

Breviarium  Alarici,  containing 

Epitome  of  Gaius. 
511-515  Edictum      Theodorici      (Lex 

Romana  Ostrogothorum). 


425-450  Theodosius  II,  Emp. 


450-457  Marcian,  Emp. 
457-474  Leo  I,  Emp. 
474  Leo  II,  Emp. 
474-491  Zeno,  Emp. 
491-518  Anastasius  I,  Emp. 
518-527  Justin,  Emp. 
527-565  Justinian,  Emp. 
Tribonian. 

528  Code  ordered. 

529  Code  published. 

530  Digest  ordered. 

533  Digest  and  Institutes  published. 

534  Revised  edition  of  Code  published. 


HISTORICAL    INTRODUCTION 

IN  order  to  justify  the  character  of  this  introductory  essay  it  is 
necessary  to  say  a  few  words  about  the  intention  with  which  it  is 
written.  The  reader  must  regard  it  mainly  in  the  light  of  an  intro- 
duction to  the  Institutes  of  Gaius,  not  in  the  light  of  a  disinterested 
sketch  of  the  history  of  Eoman  Law.  Had  it  been  intended  to  have 
the  latter  character,  both  some  of  its  omissions  and  some  of  its 
inclusions  would  be  wholly  unjustifiable.  The  most  signal  of  the 
omissions  is  the  neglect  to  give  an  adequate  treatment  to  the  stage  of 
Roman  Law  which  yields  to  no  other  in  importance — the  stage  at 
which  it  passes  from  the  religious  to  the  secular  sphere,  from  Fas  to 
Jus.  One  of  the  chief  questions  which  is,  or  should  be,  agitating 
students  of  Koman  Law  at  the  present  day,  is  that  of  the  period  at 
which  this  transition  was  effected.  For,  if  it  is  true  that  Roman  Law 
retained  its  priestly  character  and  its  religious  sanctions  to  a  late 
period  of  the  Republic  l,  then  the  traditional  history  of  the  Twelve 
Tables  is  an  improbability,  and  the  account  given  by  Cicero  and 
other  writers  of  the  legislation  and  procedure  of  the  Monarchy  and 
early  Republic  is  an  anachronism.  The  student  of  Gaius,  however, 
is  not  very  intimately  concerned  with  this  far-reaching  historical 
question  ;  and  I  have  been  content  to  state  my  general  adherence  to 
the  traditional  view  without  attempting  to  justify  it  by  evidence. 

Amongst  subjects  included  in  this  sketch,  which  have  little  direct 
bearing  on  the  histoiy  of  Roman  Law,  I  may  mention  the  descriptions 
of  the  structure  of  the  different  Comitia  at  Rome  and  the  account  of 
the  manner  in  which  the  powers  of  the  Princeps  were  conferred. 
From  the  point  of  view  of  the  general  history  of  the  civil  and 
criminal  law  in  a  State  it  is  not  of  much  importance  to  determine  the 
particular  mode  in  which  a  legislative  assembly  is  constituted,  or  the 
precise  manner  in  which  a  sovereign  (whether  nominal  or  real)  is 
invested  with  his  authority.  But  these  historical  questions  do  to 
some  extent  underlie  subjects  which  are  treated  by  Gaius  ;  and,  as  it 
was  not  found  convenient  to  deal  with  them  at  any  great  length  in 
the  commentary,  a  place  had  to  be  found  for  them  in  this  intro- 
duction. 

1  This  thesis  has  been  vigorously  maintained  by  Lambert  in  his  work 
Lafonction  du  droit  civil  compare  (1903). 

WHITTUCk  D 


x  HISTORICAL  INTRODUCTION 

§  1.    The   Unification  and  Extension  of  Roman  Law. 

The  history  of  Eoman  Law  begins  for  us  with  the  traditions  that 
have  been  preserved  concerning  the  Koman  Monarchy.  The  exist- 
ence of  a  Monarchy  such  as  that  described  for  us  by  annalists  like 
Livy  and  Dionysius,  implies  the  existence  of  a  consolidated  State, 
with  a  central  legislative  and  executive  power  and  a  tolerably 
uniform  system  of  law.  In  the  Monarchy,  however,  and  even  in  the 
early  Eepublic  it  seems  that  the  system  of  law  was  not  marked  by 
perfect  uniformity,  since  the  two  classes  of  Patricians  and  Plebeians, 
which  made  up  the  Eoman  State,  appear  to  have  been  distinguished, 
not  only  by  the  possession  of  different  political  privileges,  but  also  by 
the  possession  of  different  systems  of  customary  law '.  It  is  even 
possible  that  a  further  divergence  of  practice  may  have  existed  in 
the  most  primitive  society,  or  societies,  out  of  which  the  City  and 
Monarchy  of  Eome  developed — that  a  considerable  amount  of 
autonomy  in  legal  relations  may  have  existed  in  the  Clans  (Gentes) 
and  Villages  (Vici),  out  of  which  the  earliest  Eome  was  formed. 
The  history  of  Eoman  law,  from  its  beginning  to  its  close,  would 
thus  be  marked  by  a  process  of  gradually  increasing  unification. 
First  the  customs  of  the  Clans  were  merged  in  the  customs  of  a 
State ;  but  this  State  consisted  of  two  classes,  Patricians  and 
Plebeians  ;  and  each  of  these  classes  seems  to  have  had  a  customary 
law  of  its  own.  Then  an  attempt  was  made  to  create  a  uniform 
system ;  and  this  uniformity  was  probably  secured  by  making 
patrician  law  approximate  as  closely  as  possible  to  plebeian — the 
law  of  the  few  to  the  law  of  the  many.  A  further  advance  was 
made  when  Eome  had  become  the  mistress  of  Italy.  Italian 
customs  were  made  ultimately  to  conform  to  those  of  the  leading 
State,  and  the  free  cities  of  Italy  became  the  municipalities  of  Eome. 
Lastly,  Eome  had  created  an  Empire.  For  a  very  long  period  she 
adopted  the  wise  and  cautious  policy  of  recognizing,  as  far  as  possible, 
the  local  and  tribal  law  of  the  cities  and  peoples  under  her  control. 
The  recognition  of  this  local  or  tribal  law  was  not,  however,  merely 
a  symptom  of  the  favourite  Eoman  principle  of  non-interference.  It 
was  also  a  sign  that  the  privileges  of  Eomans  and  Italians  were  not 
possessed  by  provincials  ;  for  the  conferment  of  Eoman  citizenship, 
or  even  of  Latin  rights,  necessarily  carried  with  it  the  use  of  the  forms 
of  Eoman  Private  Law 2.  Hence,  when  a  time  came  at  which  Eome 
was  willing  to  raise  States  or  individuals  in  the  Provinces  to  a  level 

1  See  p.  xix. 

2  The  Latins  possessed  commercium  and  some  of  them  conubium.    Full  citizen- 
ship would  also  be  possessed  by  a  considerable  class  in  Latin  towns,  i.  e.  by  all 
who,  through  holding  a  magistracy,  had  become  Roman  citizens. 


EXTENSION  OF  ROMAN  LAW  xi 

with  her  own  citizens,  the  law  of  Eome  came  to  take  the  place  of  the 
territorial  or  tribal  law  of  these  political  units.  The  process  of  a 
thorough  imperial  unification  by  means  of  a  common  system  of 
Eoman  Private  Law  had  begun. 

§  2.    The  Epochs  in  this  process  of  Unification  and 
Extension. 

The  dates  of  the  three  epochs  which  we  have  touched  on  can  only 
be  vaguely  indicated.  We  have  no  knowledge  of  the  year,  or  even 
of  the  century,  when  the  smaller  political  units,  out  of  which  Eome 
was  formed,  became  so  thoroughly  marshalled  under  the  rule  of  a 
common  government  that  the  customs  of  the  Clans  were  made  to 
conform  to  the  principles  laid  down  and  enforced  by  a  single  superior 
authority.  For  the  second  epoch — the  period,  that  is,  at  which  an 
attempt  was  made  to  secure  a  uniform  system  of  law  which  would 
be  binding  equally  on  Patricians  and  Plebeians — tradition  does 
supply  a  date,  one,  however,  that  has  more  than  once  been  doubted 
by  modern  writers  on  Eoman  History  and  Law1.  This  traditional 
date  is  comprised  in  the  years  451-448  B.C.,  years  which  the  Eomans 
believed  to  mark  the  creation  of  the  Decemviral  Commission  and  the 
publication  of  the  Law  of  the  Twelve  Tables.  The  third  tendency — 
that  of  the  unification  of  Eome  with  Italy, — although  it  had  begun  to 
be  felt  in  isolated  cases  from  a  very  early  period  of  Eoman  History, 
may  be  said  to  have  received  its  final  impulse  at  the  close  of  the  great 
war  for  Italian  freedom,  generally  known  as  the  Social  war,  in  89 
B.  c.  The  last  epoch — that  of  imperial  unification — may  be  said  to 
have  been  ushered  in  by  the  accession  of  Caesar  to  supreme  power  in 
49  B.  c.  It  had  not  been  closed  even  by  the  time  of  Gaius,  about  the 
middle  of  the  second  century  A.  D.  ;  for,  even  at  that  late  period 
the  Eastern  part  of  the  Empire  still  abode  by  Eastern  forms  of  law 2. 
It  may  even  be  questioned  whether  the  Edict  of  Caracalla,  which 
is  believed  to  have  extended  Eoman  citizenship  to  all  the  free 
inhabitants  of  that  portion  of  the  world  that  was  ruled  by  Eome, 

1  Pais,  in  his  Storia  di  Roma,  has  stated  the  view  that  the  Decemviral  Legisla- 
tion has  been  antedated  by  about  a  century  and  a  half.     He  brings  it  down  to 
the  close  of  the  fourth  century  B.C.     He  believes  that  Appius  Claudius,  the 
Decemvir,  is  a  duplicate  of  Appius  Claudius,  the  censor  of  312  B.C.,  and  that 
the  story  of  a  publication  by  the  Decemvirs  is  a  duplicate  of  the  story  of  the 
revelation  of  the  forms  of  Law  by  Cn.  Flavins  in  304  B.C.     Lamb§rt  has  gone 
still  further  in  a  view  expressed  in  three  works  (La  question  de  Tauthenticite  des 
XII   Tables   et  les  Annales  Maximi ;    La  function   du   droit   civil  compare;    L'histoire 
traditionnelle  des  XII  Tables).     He  thinks   that  the  Twelve   Tables,  as   a   code, 
originated   with   Sextus  Aelius  Paetus,    consul   in  198   B.C.,   whom   tradition 
regards  as  their  earliest  commentator,  although  he  admits  that  there  may  have 
been  successive  partial  compilations  before  this  date. 

2  Mitteis,  Reichsrecht  und  Volksrecht. 

ba 


xii  HISTORICAL  INTRODUCTION 

between  the  years  212  and  217  A.D.,  really  eliminated  all  the  local 
varieties  of  customary  law.  Local  customs  tend  to  die  hard,  and  it 
was  never  in  the  spirit  of  the  Koman  Empire  to  suppress  them.  The 
legal  unity  of  the  Empire  was  always  more  strongly  marked  in  the 
matter  of  Procedure  than  in  the  matter  of  Substantive  Law.  The 
processes  of  the  Courts  were  the  same  for  every  Province  at  a  time 
when  the  greatest  varieties  of  customary  law  were  recognized  by  • 
these  courts. 

§  3.    Stages  of  Roman  Legal  History — The  Clan  and  the 
Family — Evolution  of  individual  rights. 

We  may  now  attempt  to  treat  in  greater  detail  the  stages  of  Eoman 
Legal  History  which  we  have  outlined.  The  earliest  stage — that 
marked  by  the  independent  or  almost  independent  life  of  the  Clan 
or  Gens — is  one  for  which,  by  the  nature  of  the  case,  no  definite 
historical  evidence  exists.  The  reality  of  such  a  life  is  merely  an 
inference  drawn  from  the  characteristics  of  the  Gens  as  it  appears 
before  us  in  the  historical  period.  These  characteristics  seem  to 
prove  that  the  Gens  is  not  a  really  primitive  institution,  but  a  late 
and  advanced  stage  in  the  social  development  of  the  Latin  races  ;  but, 
on  the  other  hand,  they  may  show  that  it  was  in  many  respects  a 
more  primitive  unit  than  the  State  ;  that  is,  that  it  exercised  rights 
and  duties  which  were  ultimately  exercised  by  the  State.  No 
political  society  worthy  of  the  name  can  deal  with  Clans  as  the 
subjects  of  rights ;  it  can  deal  only  with  Families  or  Individuals. 
Hence,  if  the  Roman  Gens  ever  lived  a  strong  corporate  life,  the 
authority  of  the  Roman  State  must  in  those  days  have  been  weak. 

The  organization  of  the  Gens  was  based  on  the  patriarchal  idea  in 
its  extreme  form  ;  that  is,  on  the  conception  that  relationship  is  only 
binding  when  it  can  be  traced  through  the  male  line.  And  this  is 
the  fact  which  seems  to  prove  that  the  Gens  marks  a  late  and 
mature  stage  in  the  development  of  Latin  societies  ;  for  the  patri- 
archal idea  is  not  one  that  is  readily  grasped  by  the  mind  of  primitive 
man.  Yet,  late  as  the  Gens  is  when  considered  in  reference  to  the 
prehistoric  development  of  the  Latin  race,  it  perhaps  possessed,  before 
the  veiy  dawn  of  history,  a  unity  and  power  of  its  own,  of  which 
but  pale  reflections  survive  in  the  historical  period.  In  historical 
times  the  only  test  of  unity  was  the  common  name  borne  by  the 
Gentiles  x ;  the  chief  signs  of  corporate  action  were  their  guardianship 
of  the  insane  and  their  reversionary  right  of  guardianship  over 
women  and  children 2  —  powers  which  the  Gentiles  must  have 

1  Cic.  Top.  6.  29  '  Gentiles  sunt  inter  se,  qui  eodem  nomine  sunt.' 

2  [Cic.]  ad  Her.  i.  13.  23  ;  Cic.  pro  Domo,  13.  35  ;  Gaius,  i.  157,  ii.  47. 


EVOLUTION  OF  INDIVIDUAL  RIGHTS  xiii 

exercised  by  delegating  their  authority  to  a  personal  representative. 
The  further  right  which  they  possessed  in  later  times,  of  succeeding 
to   intestate  inheritances  in  the  last   resort l,    was  perhaps  a  right 
possessed  by  individual  members  of  the  corporation  rather  than  by 
the  corporation  itself.     But  a  corporate  activity  far  greater  than  this 
has  been  suspected  for  earlier  times.     There  is  indirect  evidence  that 
all   Private  Land  (Ager  Privatus)  was  at  one  time  owned  by  the 
Gentes,    not  by   families   or  individuals 2,  and   the  view  that   the 
primitive   Koman   Senate   was   in  some   way  representative  of  the 
Gentes  is  in  accordance  with  the  belief  of  Eoman  antiquity 8.     The 
fact  that  the  primitive  Roman  State  was  in  many  ways  conditioned 
by   its   clan   organization  seems  to  be  certain.     As  the  State  grew 
stronger,  it  substituted  the  Family  for  the  Clan.     Between  the  two 
there  is  only  a  difference  of  degree.     The  Family  (Familia)  is  the 
aggregate  of  the  members  of  a  household  under  a  common  head,  the 
Paterfamilias  ;  whereas  the  Gens  is  the  aggregate  of  all  individuals 
who  bear  a   common  name  and  who,  therefore,  if  their  ancestry 
could  be  traced  in  the  male  line  through   all  its  stages,  would  be 
found    to   be  the  descendants   of  some  ultimate  common  ancestor. 
But  the  Familia  is  a  far  smaller,  and  therefore  a  far  less  powerful, 
unit  than  the  Gens.     It  cannot  so  effectively  dominate  the  State  or 
impede   its   activities4.     Again,  the  heads  of  families  are  many  in 
number  ;  the   heads  of  the  Gentes  (who  must  have  existed  at  the 
time  when  the  Gens  was  the  important  unit)  were  necessarily  few. 
The   State  which   deals  with   families  deals   with   a  multitude  of 
individuals,  not  with  an  oligarchy  representing  the  interests   of  a 
number   of  corporations.     The  conception  of  individual  rights,   in 
their  modern  sense,  was,  it  is  true,  never  fully  recognized  in  Roman 
Private  Law.     It  was  impeded  by  the  Patria  Potestas — the  life-long 
power  of  the  father  over  the  son.     But  much  was  ultimately  done  to 
lessen   the  rigour  of  this  patriarchal  rule ;   and  the   principles  of 
Roman  Law  were   finally  extended  to  races  which  knew  nothing 
of  the  Patria  Potestas.     This  law  ultimately  gave  the  most  perfect 
expression  hitherto  witnessed  by  the   Wbrld  of  rights  which  were 
both  universal  and  individual.     The  existence  of  the  Empire  gave 
Rome  the  power,  possessed  in  as  high  a  degree  by  no  other  State,  of 
dealing  with  the  individual  on  universal  lines,  because  she  was  not 
hampered  by  the  barriers  between   man  and  man  thrown  up  by 
separate  national  institutions. 

1  Ulpian  in  CoUatio,  16.  4.  2  ;  cf.  Gaius,  iii.  17. 

2  Mommsen,  Staatsr.  iii,  p.  23  foil. 

3  Cic.  de  Hep.  ii.  20.  35  ;  Liv.  i.  35. 

*  See  Daily  News,  Sept.  5,  1901  (<  The  Genius  of  Rome '). 


xiv  HISTORICAL  INTRODUCTION 

§  4.    Early  Religious  Law  (Fas) — The  Leges  Regiae — The 
Secularization  of  Law. 

A  process,  which  runs  parallel  with  that  which  we  have  just  de- 
scribed, is  the  process  by  which  Eoman  Law  came  to  be  secularized ; 
the  process,  that  is,  by  which  human  were  gradually  substituted  for 
divine  sanctions.  The  customary  law  of  a  primitive  society  is  either 
identical  with,  or  developed  from,  some  form  of  belief  which  implies 
the  omnipresence  of  the  gods  and  their  detailed  interest  and  activity 
in  human  affairs.  In  primitive  Eome  the  pleading  (actio)  of  the 
litigant  in  a  civil  suit  is  a  religious  chant,  every  word  and  cadence 
of  which  must  be  learnt  from  the  priest ;  the  wager  (sacramentum), 
by  which  the  process  is  stated,  is  a  gift  to  a  temple,  and  is  probably 
conceived  as  an  atonement  for  the  involuntary  perjury  of  the  man 
who  loses  his  case  1 ;  the  penalties  of  the  criminal  law  are  means  of 
expiating  the  anger  of  the  gods,  the  severest  form  of  atonement  being 
the  sacrifice  of  the  sinner  on  the  altar  of  the  deity  whom  he  has 
offended  2.  Eome  in  the  historical  period  still  preserves  many  traces 
of  these  beliefs  of  her  infancy.  They  are  found  in  the  respect  for 
the  Auspices,  in  the  conservatism  which  maintained  the  cumbrous 
forms  of  the  old  pleadings  (actiones)  and  the  custody  of  these  forms 
by  the  Pontifical  College  ;  in  the  varied  methods  by  which  crime  or 
sin  is  punished,  some  offences  being  reserved  wholly  for  the  secular 
courts,  others  being  visited  by  the  judgments  of  the  Pontifical 
College,  others  again  being  subject  to  the  milder  chastisement  of  the 
Censor  before  he  performs  the  religious  rite  of  Purification  (Lustratio). 
But  the  belief  of  the  Eomans  themselves  was  that,  in  the  very  earliest 
stages  of  their  recorded  or  imagined  history,  the  primitive  epoch  of 
complete  subservience  to  religious  forms,  if  it  ever  existed,  had  been 
already  passed,  and  that  even  in  the  time  of  the  Kings  something 
approaching  a  clear  line  could  be  drawn  between  the  functions  of 
Eeligious  Law  (Fas)  and  those  of  Secular  Law  (Jus).  At  the  close  of 
the  history  of  the  Eepublic  there  could  be  shown,  in  contradistinction 
to  the  great  secular  code  of  the  Twelve  Tables,  a  collection  of  religious 
ordinances,  believed  to  be  even  more  ancient  than  this  code,  and 
known  as  the  Laws  of  the  Kings  (Leges  Eegiae) 3.  These  laws  are 
'  not  represented  as  having  formed  a  code,  but  merely  a  compilation. 
They  were  believed  to  be  regal  ordinances,  issued  by  different  Kings, 

1  See  Danz,  '  Das  Sacramentum  und  die  lex  Papiria,'  in  Zeitschr.  f.  R.  G.  vi 
(1867),  p.  339  foil.  ;  Der  sacrale  Schuts,  p.  151  foil. 

2  This  must  have   been  the  original  meaning  of  the  mnsecratio  capitis,  the 
penalty  of  the  leges  sacratae.     See  Liv.  iii.  55 ;  Festus,  p.  318 ;  Bouche-Leclercq, 
Les  pontifes  de  Vancienne  Rome,  p.  196. 

3  The   extant   Leges  Regiae  are  to  be  found  in  Bruns,  F antes  juris  Romani 

I.  1. 


THE  LEGES  REGIAE  xv 

which  had  been  collected  in  the  early  days  of  the  Kepublic  by  a 
Pontiff  named  Papirius '.  It  was  held  that  they  had  been  publicly 
exhibited  in  Koine,  and  were  restored,  like  the  Twelve  Tables,  after 
the  burning  of  Kome  by  the  Gauls  (390  B.  c) 2.  At  the  end  of  the 
Republic  the  compilation  was  edited,  perhaps  to  some  extent  revised, 
by  a  scholar  named  Granius  Flaccus,  who  is  believed  to  have  been 
a  contemporary  of  Caesar3  ;  but  there  is  no  reason  for  supposing 
that  riaccus  introduced  any  essential  alteration  in  the  tenor  of  the 
ordinances.  These  ordinances,  in  the  form  in  which  they  have  been 
preserved  to  us,  bear  the  strongest  internal  marks  of  their  genuine- 
ness. Some  of  the  provisions  which  they  contain  are  quite  pre- 
historic and  could  never  have  been  valid  at  any  period  of  the  history 
of  the  Republic.  Others  deal  with  purely  religious  observances, 
which  may  belong  to  any  date,  but  may  be  as  early  as  the  city  of 
Rome  itself.  The  Royal  Laws,  in  fact,  contain  a  series  of  ordinances, 
dealing  with  social,  moral  and  religious  life,  such  as  may  have  been 
issued  over  a  long  period  of  time  by  the  College  of  Pontiffs.  It  is 
not  likely  that  all  of  these  rules  really  go  back  to  the  epoch  of  the 
Kings  ;  but  many  of  them  must  do  so,  for  they  reflect  an  extremely 
primitive  stage  of  culture  and  religious  belief.  In  fact,  one  of  the 
most  surprising  features  of  the  Royal  I^aws  is  their  lack  of  signi- 
ficance for  the  ordinary  current  of  Roman  life,  as  it  was  lived  in  the 
historical  period.  Where  they  are  not  a  dead  letter,  they  refer  only 
to  slight  and  exceptional  contingencies,  to  the  bare  outline  of  the 
political  life  of  the  State  and  to  the  faintly  denned  structure  of  its 
hierarchical  organization  ;  whereas  the  Law  of  the  Twelve  Tables  is 
a  great  living  force,  which  pervades  the  whole  of  Roman  business 
life.  The  Royal  Laws  reflect  on  the  whole  the  rule  of  Fas ;  the 
Twelve  Tables  almost  entirely  the  rule  of  Jus.  A  comparison  of 
the  former  compilation  with  the  latter  code,  in  regard  to  their  re- 
spective influences,  exhibits  more  effectively  than  any  other  evidence 
could  do  the  triumph  of  secular  over  religious  law  even  in  the  early 
period  of  the  Republic. 

§  5.    Jus — Its  different  forms  as  exhibited  in  Procedure. 

The  counterpart  to  the  rule  of  Fas  is  the  rule  of  Jus.  .Jus  seems 
originally  to  have  meant  '  That  which  is  fitting ' 4,  and  the  word 

1  Dionys.  iii.  36;  Pompon,  in  Dig.  1.  2.  2.  36.  2  Liv.  vi.  1. 

3  Paulus  in  Dig.  50.  16.  144  ;  Censorinus,  De  Die  Nat.  iii.  2. 

4  Clark,  Practical  Jurisprudence,  p.  17.     Nettleship  (Contributions  to  Latin  Lexico- 
graphy,  p.  497)  enumerates  the  following  senses  of  jus  in  Latin  literature  : — 

(1)  a   law   court   (e.g.    in  the   phrases    'In   jus  ducere,'   '  Res   est   in  jure'), 

(2)  a  bond  or  tie  (e.g.  in  the  phrases  'Jus  amicitiae,'  'Jura  necessitudinis'), 

(3)  power,  authority,   (4)   right  to  do  a  thing,    (5)  law,  or  a  system  of  law, 
(6)  what  is  right  and  fair,  (7)  the  plural  jura  means  either  (a)  rights  or  (b)  rules 
of  law,  ordinances,  decisions,  and  so  authority. 


xvi  HISTORICAL  INTRODUCTION 

never  necessarily  conveys  the  implication,  contained  in  the  word 
Law,  that  the  thing  it  describes  is  the  result  of  enactment  by  a 
Sovereign.  It  conveys  rather  the  idea  of  valid  custom,  to  which 
any  citizen  can  appeal,  and  which  is  recognized,  and  can  be  enforced 
by,  a  human  authority.  Jus  is  a  nugatory  thing,  a  vain  abstraction, 
until  it  can  be  realized  ;  it  is  a  thing  recognized  only  in  practice  ; 
and  so  indissolubly  were  the  ideas  of  Eight  and  Satisfaction  con- 
nected with  one  another  in  the  minds  of  the  Romans  that  they  used 
the  same  word  '  Jus '  for  Right  and  for  Court l.  This  association  of 
ideas  gives  us  the  clue  to  the  fact  that  the  only  possible  method 
of  distinguishing  between  the  different  kinds  of  Jus  is  by  appealing 
to  Procedure.  In  early  societies,  where  there  is  no  science  of  Juris- 
prudence, the  only  way  in  which  the  distinctions  between  different 
kinds  of  law — public  and  private,  civil  and  criminal — can  be  exhibited, 
is  by  pointing  to  the  fact  that  different  kinds  of  mechanism  have 
been  created  for  satisfying  different  kinds  of  claims.  Thus  the 
characteristics  of  private  law  are  those  of  a  civil  suit.  Here  the 
action  can  be  brought  only  by  the  injured  party  or  his  representative, 
the  satisfaction  recovered  belongs  to  the  injured  party,  the  Court 
which  gives  the  satisfaction  is  composed  of  some  arbitrator  or  judge 
(arbiter  or  judex)  chosen  by  the  consent  of  the  parties,  but  approved 
by  the  judicial  magistrate  who  represents  the  State.  Criminal  Law 
may  similarly  be  denned  in  terms  of  Criminal  Procedure.  Here  the 
wrong  done  is  regarded  as  inflicted,  not  merely  on  the  individual 
injured,  but  through  him  on  the  State.  The  State,  therefore,  will 
not  depend  on  the  initiative  of  the  injured  individual  to  undertake 
the  prosecution.  It  can  either  be  taken  up  by  any  citizen,  or  is 
regarded  as  the  peculiar  duty  of  a  magistrate.  The  magistrate  is 
often  both  prosecutor  and  judge.  The  defendant  has  no  voice  in 
the  selection  of  the  Court.  The  Court  consisted,  in  the  earlier  pro- 
cedure at  Rome  which  never  became  wholly  extinct  during  the 
Republic,  of  a  magistrate  representing  the  State,  or  of  the  State 
itself  in  the  form  of  the  Sovereign  Assembly  of  the  People;  at  a 
later  period,  of  a  select  body  of  Judices  with  a  President  (Quaesitor), 
both  Judges  and  President  being  created  by  statute.  The  satisfaction 
recovered  from  the  defendant  in  such  a  trial,  if  it  takes  the  form  of 
a  fine,  belongs  not  to  the  aggrieved  individual  but  to  the  State ;  if 
it  assumes  the  form  of  punishment  which  is  not  pecuniary,  such 
punishment  is  inflicted  by  the  State.  The  third  class  of  occasions 
on  which  the  State  intervenes  to  correct  a  wrong  or  to  chasten  an 
individual,  is  that  governed  by  the  rules  of  Administrative  Law2. 
The  procedure  springing  from  this  Law  has  analogies  both  to  civil 

1  See  note  4,  p.  xv. 

2  On  this  branch  of  Public  Law  see  Mommsen,  Staatsr.  i,  p.  172. 


THE  DIFFERENT  FORMS  OF  JUS  xvii 

and  to  criminal  jurisdiction.  Administrative  jurisdiction  has  as  its 
object  either  the  enforcement  of  a  personal  service  to  the  State  on 
an  individual,  or  the  exaction  of  a  debt  which  he  owes  to  the  State. 
The  obligation  to  service  is  generally  enforced  by  a  fine  imposed  by 
the  magistrate.  But  whether  what  is  demanded  by  the  State  takes 
the  form  of  personal  service  or  a  pecuniary  debt,  the  characteristic  of 
Administrative  jurisdiction  at  an  early  period  of  Roman  History  is 
that  the  magistrate  who  represents  the  State  has  a  double  character. 
He  is  not  only  prosecutor  or  plaintiff  but  also  judge.  This  principle, 
however,  was  eventually  modified.  If  the  fine  imposed  exceeded 
a  certain  limit,  an  appeal  to  the  People  was  allowed l ;  and,  later 
still,  the  penalty  might  be  sought  either  by  a  magistrate  or  a 
common  informer  before  a  civil  court  \  When  a  debt  to  the  State 
was  the  object  of  dispute,  the  custom  may  eventually  have  been 
established  that  the  magistrate  should  not  himself  judge,  but  should 
appoint  for  this  purpose  a  panel  of  those  assessors  of  debts  or 
damages  who  were  known  as  Recuperatores 2. 

The  question  as  to  what  particular  cases  shall  fall  under  each  of 
these  three  heads  of  Civil,  Criminal  and  Administrative  Law  is  one 
that  is  answered  differently  by  different  political  societies ;  and  Rome 
herself  gave  different  replies  to  this  question  at  various  periods  of 
her  history.  But  we  know  of  no  period  in  the  life  of  Rome  when 
the  distinction  between  these  three  types  of  Law  and  Procedure  was 
not  clearly  grasped,  and  expressed  by  the  higher  judicial  authorities, 
who  were  at  Rome  in  a  very  real  sense  the  makers  of  law. 

§  6.    The  ultimate  sources  of  Jus — The  Monarchy  and 
the  Early  Republic. 

The  problem  of  the  ultimate  source  and  sanction  of  Jus  was  not 
one  that  troubled  the  Roman  to  any  appreciable  degree  at  any  period 
of  history.  He  was  content  to  regard  it  as  the  product  of  Custom 
assisted  by  Interpretation.  At  a  later  period  he  supplemented  it  by 
acts  of  Legislation  ;  but,  even  when  he  did  'so,  he  was  much  less 
concerned  with  the  words  of  the  enactment  than  with  the  manner 
in  which  these  words  were  interpreted.  Scarcely  any  people  has 
had  less  of  a  gift,  or  natural  inclination  for,  scientific  legislation  or 
the  formation  of  a  Code.  The  Roman's  dependence  on  authority  and 
skilled  interpretation  was,  therefore,  great ;  and  this  authority  and 
power  of  interpretation  are  believed  to  have  been  represented,  in  the 

1  This  procedure  is  illustrated  by  the  Lex  Bantina  (Bruns,  Fontes,  iii.  9).  It 
is  there  ordained  '  Earn  pequniam  quei  volet  magistratus  exsigito.  Sei  postulabit 
quei  petet,  pr(aetor)  recuperatores  .  .  .  dato  .  .  .  facitoque  joudicetur.' 

3  Compare  the  procedure  ordained  by  the  Lex  agraria  of  111  B.C.  (Bruns, 
Fontes,  iii.  11),  II.  36-39. 


xviii  HISTORICAL  INTRODUCTION 

earliest  times,  by  the  King  and  the  College  of  Pontifices.  Justice  could 
only  be  obtained  by  a  litigant  who  knew  the  formularies  of  action, 
precise  verbal  accuracy  in  which  was  necessary  for  the  successful 
conduct  of  a  suit l.  But  this  knowledge  could  be  obtained  only  from 
the  King  and  his  Pontiffs.  The  King,  too,  must  have  given  the  ruling 
in  law  which  determined  what  form  of  action  should  be  employed 2. 
Even  at  this  early  period  the  private  Judex  or  Arbiter  may  often 
have  been  used  for  the  final  settlement  of  a  suit 3 ;  but  the  King  must 
have  assisted  in  his  appointment ;  and  his  judgment  must  have 
been  conditioned  by  the  preceding  form  of  action  which  the  King 
and  the  Pontiffs  had  thought  appropriate  to  the  suit. 

The  change  from  Monarchy  to  Kepublic  could  have  made  little 
difference  in  the  manner  in  which  the  law  was  revealed  to  the 
Eoman  litigant,  except  in  so  far  as  this  change  may  have  increased 
the  power  of  the  College  of  Pontiffs.  The  annual  tenure  of  the 
consulship,  and  the  fact  that  each  occupant  of  this  office  was 
hampered  by  a  colleague,  prevented  the  new  magistracy,  which  was 
supposed  to  give  the  forms  of  Jus,  from  exercising  over  its  skilled 
advisers  the  authority  which  had  been  once  wielded  by  the  King ; 
and  the  patrician  aristocracy,  each  member  of  which  might  be  a 
consul  or  a  pontiff,  must  now  have  attained  a  solidarity  which  it  had 
never  known  before.  The  tendency  of  this  aristocracy  was  to  close 
up  its  ranks  and  to  assert  a  monopoly,  not  only  of  office,  but  of 
knowledge  of  the  forms  of  law. 

§  7.    Patricians  and  Plebeians. 

Had  Eome  been  a  homogeneous  community,  there  would  perhaps 
have  been  no  agitation  for  the  revelation  of  the  principles  of  law 
which  underlay  the  forms  of  procedure,  and  there  would  therefore 
have  been  no  tendency  towards  an  early  codification.  But  Kome 
was  composed  of  two  communes,  not  of  one.  There  was  a  Plebs 
within  the  Populus  ;  and  this  Plebs  possessed  a  solidarity  which 
gave  it  the  means  of  lifting  up  its  voice  in  a  demand,  not  for  power, 
but  for  the  protection  of  legal  rights,  and  for  the  knowledge  which 
was  essential  to  that  protection.  The  origin  of  the  Plebs  is  wholly 
unknown.  The  favourite  assertion  of  modern  writers,  that  the 
Plebeians  were  a  class  which  had  emerged  from  a  condition  of  client- 
ship  to  the  Patricians,  does  very  little  to  solve  the  problem  of  the 
origin  of  the  former  class,  except  in  so  far  as  it  suggests  that  some  of 
the  Plebeians  were  inhabitants  of  conquered  cities  that  had  been 
deported  to  Kome,  and  that  others  were  voluntary  sojourners  from 

1  Gains,  iv.  11.  »  Cic.  de  Rep.  v.  2,  3. 

3  Savigny,  System  des  rom.  Rechts,  vi.  p.  287  ;  BernhOft,  Stoat  und  Recht  der 
Kbnigszeit,  p.  230. 


PATRICIANS  AND  PLEBEIANS  six 

distant  cities  who  were  protected  by  the  government  and  the 
patrician  clans.  But  it  seems  impossible  that  causes  such  as  these 
could  have  led  to  the  creation  of  a  mass  of  men  that  appears  in  early 
Eoman  history  as  forming  the  bulk  of  the  community  ;  and  it  is 
possible  that  further  evidence  (archaeological  and  ethnological)  may 
show  that  the  distinction  between  Patricians  and  Plebeians  is  one 
based  on  race,  and  that  the  existence  of  the  Patricians  as  a  governing 
class  is  the  result  of  the  conquest  of  a  native  race  by  bands  of  im- 
migrant wanderers1.  Throughout  Koman  law  there  is  a  curious 
persistence  of  dual  forms  for  the  attainment  of  the  same  end  which 
may  be  a  survival  of  two  distinct  systems  of  customary  law  possessed 
by  different  peoples,  the  conquerors  and  the  conquered.  Thus  we 
have  the  Sponsio  side  by  side  with  the  Nexum,  marriage  by  Con- 
farreatio  side  by  side  with  marriage  by  Usus  or  Coemptio,  the 
testament  in  the  Comitia  Calata  side  by  side  with  the  testament '  per 
aes  et  libram.'  The  procedure  '  by  the  copper  and  the  scales,'  in 
the  manifold  forms  which  it  assumes,  seems  to  be  especially  a 
characteristic  of  the  popular  law  of  the  commons.  The  exclusion  of 
the  Plebeians  from  the  magistracy  and  the  priesthood,  and  the  denial 
to  them  of  the  right  of  Conubium  with  Patricians,  may  also  point 
in  the  direction  of  a  fundamental  racial  distinction  between  the  two 
classes.  But  the  disabilities  consequent  on  this  racial  distinction, 
if  we  suppose  it  to  have  existed,  were  by  no  means  limited  to  the 
domain  of  public  rights.  They  pervaded  the  whole  of  Koman  life  to 
such  an  extent  that  there  is  considerable  justification  for  the  view 
that  the  early  condition  of  the  Plebeian  was  very  like  that  of  the 
client.  In  the  first  place,  the  Patricians  maintained  that  they  alone 
formed  Gentes,  and  the  condition  of  being  a  member  of  a  Gens,  or 
Gentilis,  was  that  the  man  who  made  the  claim  should  be  able  to 
point  to  a  perfectly  free  ancestry 2.  In  this  claim  of  the  Patricians 
we  therefore  have  the  implication  that  the  ancestors  of  the  Plebeians 
were  not  free.  In  all  respects  but  this,  the  Plebeians  formed  Clans 
just  like  the  Patricians.  A  group  of  Plebeians  who  bore  a  common 
name  formed  a  Stirps,  but  this  Stirps  was  supposed  to  be  a  mere 
offshoot  of  some  patrician  Gens  on  which  it  was  held  to  be  de- 
pendent. It  possessed  no  independent  rights  of  its  own.  A  group 
of  Plebeians  who  could  trace  their  ancestry  back  to  a  common 

1  Compare  Ridgeway,  The  early  age  of  Greece,  p.  257.  '  We  may  conclude  that 
the  two  main  elements  in  the  population  of.  early  Rome  were  the  aboriginal 
Ligurians,  who  formed  the  Plebs,  and  the  Umbrian  Sabines,  who  formed  the 
aristocracy.'  The  evidence  is  perhaps  not  sufficient  to  warrant  so  definite 
a  conclusion  ;  but  the  more  that  I  have  dwelt  on  the  lack  of  homogeneity  in 
early  Roman  life,  the  more  definite  has  become  my  conviction  that  we  have  to 
deal  with  racial,  not  merely  with  social,  differences. 

3  l  Gentiles  sunt  .  .  .  quorum  majorum  nemo  servitutem  servivit '  (Cic.  Top. 
6.  29). 


xx  HISTOEICAL  INTRODUCTION 

head  were  called  Agnati ;  but  these  Agnati  had  not  the  rights  of 
inheritance,  or  perhaps  the  other  family  rights,  possessed  by  the 
Gentiles.  The  rights  of  plebeian  Agnati  were  recognized  by  the 
Twelve  Tables  ;  but  this  was  perhaps  the  first  recognition  that  they 
gained.  In  the  second  place,  of  the  two  rights  which  were  sub- 
sequently considered  as  forming  the  minimum  conditions  of  citizen- 
ship, the  Jus  Conubii  was,  we  know,  not  possessed  at  all  by  Plebeians, 
and  it  is  probable  that  they  possessed  the  Jus  Commercii  in  a  very 
imperfect  form.  We  cannot,  it  is  true,  point  to  a  time  when  no 
Plebeian  could  conclude  a  contract,  or  bring  an  action,  unless,  like 
a  client,  he  acted  through  a  patron.  •  But  it  is  probable  that  in  early 
times  he  had  a  very  limited  capacity  for  controlling  land  ;  that  he 
held  the  ground,  which  he  worked  for  himself,  merely  on  sufferance 
(Precario),  and  not  in  virtue  of  his  civic  right  (ex  Jure  Quiritium) ]. 
This  seems  proved  by  the  fact  that  he  was  not  originally  liable  to 
service  in  the  legions 2 :  for  there  can  be  little  doubt  that  such 
service  was  a  burden  imposed  on  landowners 3.  It  seems  that  the 
one  great  condition  which  led  to  the  rise  of  the  Plebeians  as  a 
r  power  in  the  State  was  the  recognition  of  their  rights  as  independent 
holders  of  land.  This  recognition  was  accorded  because  their  ser- 
vices were  required  as  soldiers  in  the  legions  and  as  tax-payers. 
They  could  now  hold  and  dispose  of  Kes  Mancipi ;  that  is,  those 
kinds  of  property  which  were  assessed  at  the  Census  (Kes  Censui 
Censendo) 4  and  which,  as  being  liable  to  such  assessment,  required 
peculiar  methods  of  transfer  as  evidence  of  ownership.  This  change 
must  have  preceded  or  accompanied  the  great  epoch  of  reform  which 
is  associated  with  the  name  of  Servius  Tullius. 

§  8.    Acquisition  of  voting  rights  by  Plebeians — Assemblies 
of  the  Populus  and  of  the  Plebs. 

When  the  army  was  made  the  basis  of  the  new  Comitia  Centuriata, 
the  wealthier  Plebeians  who  were  members  of  the  army  gained  a 
vote  ;  and  the  Comitia  Curiata,  originally  patrician,  must  soon  have 
come  to  admit  members  of  the  Plebs.  But  this  voting  power  did 
little  good  to  the  class  as  a  whole.  Its  true  strength  lay  in  its 
military  organization.  The  first  secession  was  an  incident  in  a 
campaign ;  and  it  is  not  surprising  that  the  officers  whom  the 
Plebeians  appointed  to  protect  their  persons  against  the  patrician 

1  Cf.  Savigny,  Recht  des  Besitees  (seventh  edition),  p.  202. 

a  If  we  believe  that  the  Servian  census  was  intended  to  create  liability  to 
service  for  Plebeians.  Cf.  p.  xxv. 

3  This  seems  shown  by  the  continuance  of  the  use  of  the  word  assidui  for  the 
members  of  the  Servian  Classes. 

1  Cic.  pro  Flacco,  32.  80. 


THE  TWELVE  TABLES  xxi 

magistrates,  bore  the  military  name  of  Tribuni.  The  creation  of  the 
Tribunate  gave  the  Plebs  a  political  organization,  and  was  the 
starting-point  of  that  dualism  which  runs  through  the  whole  of  the 
Eoman  constitution — a  dualism  expressed  in  the  distinction  between 
the  Comitia  of  the  People  and  the  Concilium  of  the  Plebs,  between 
Lex  and  Plebiscitum,  between  Magistratus  Populi  and  Magistratus 
Plebis,  between  the  Imperium  of  the  one  and  the  Sacrosanctitas  of 
the  other.  The  tribunes,  however,  could  offer  only  personal  assistance 
to  outraged  individuals,  and  though  they  proved  a  potent  channel 
for  the  petitions  of  the  Plebs  as  a  whole,  they  were  a  very  ineffective 
means  of  protecting  the  private  rights  of  individual  members  of  this 
order.  Effective  protection  was  in  any  case  impossible  until  a  fuller 
light  had  been  thrown  on  the  question  what  the  rights  to  be  pro- 
tected actually  were.  Hence  the  demand  for  the  publication  of  the 
principles  of  the  law  on  which  the  jurisdiction  of  the  patrician 
magistrates  was  based. 

§  9.    Unification  of  the  Law  by  means  of  the  Tivelve  Tables. 

The  story  of  the  creation  of  the  Decemvirate  and  the  formation  of 
the  Code  of  the  Twelve  Tables,  which  has  come  down  to  us  in  a 
highly  picturesque  and  legendary  shape,  presents  us  with  the  picture, 
fir.st  of  a  prolonged  agitation  of  ten  years  (462-452  B.  c.)  maintained 
by  the  tribunes  of  the  Plebs,  then  of  a  commission  sent  to  gain 
knowledge  of  Hellenic  codes,  next  of  the  appointment  of  two 
successive  boards  of  Decemvirs  for  the  years  451,  450  B.  c.,  and 
finally  of  the  ratification  of  the  Code  by  the  Comitia  Centuriata  and 
of  its  publication,  in  its  completed  form,  by  the  consuls  of  448  B.  c. 1 
The  Greek  influence  on  the  Code  2,  although  slight,  is  undeniable, 
because  it  was  unavoidable.  It  may  not  have  been  gathered,  in  the 
way  affirmed  by  tradition,  by  the  appointment  of  a  commission  to 
inspect  the  systems  of  law  of  different  Hellenic  states ;  but  it  was, 
at  the  least,  an  inevitable  result  of  the  prolonged  influence  of  the 
civilization  of  Magna  Graecia 3,  to  which  Eome  had  been  .subject 
from  the  days  of  her  infancy — an  influence  which  successively 
moulded  her  army,  her  coinage,  her  commerce  and  her  literature. 
Again  no  State,  however  self-centred,  could  dream  of  undertaking 
such  an  enterprise  as  a  written  system  of  law  without  glancing  at 
similar  work  which  had  already  been  accomplished  by  neighbouring 
cities.  But,  in  spite  of  the  fact  that  some  of  its  outline  and  a  few  of 

1  Liv.  iii.  57. 

2  See  Pais,  Storia  di  Roma,  i.  1,  p.  584.     He  describes  the  law  of  the  Tables  as 
the  result  of  a  fusion  of  the  rude  national  law  with  the  more  civilized  dispositions 
of  Greek  culture. 

3  Cf.  Voigt,  XII  Tafeln,  i,  p.  14. 


xxii  HISTORICAL  INTRODUCTION 

its  ideas  may  have  been  borrowed  from  Greek  sources,  the  Law  of 
the  Twelve  Tables  is  thoroughly  Roman  both  in  expression  and  in 
matter.  The  form  of  expression  is,  it  is  true,  not  that  of  later 
Roman  legislation — complicated,  technical,  obscure.  Had  it  been  so, 
the  Twelve  Tables  could  scarcely  have  survived.  It  was  the  form 
that  was  current  in  the  verbal  juristic  maxims  of  this  and  a  later 
period — brief,  gnomic,  rhythmic  and  imperative  \  As  to  the  matter, 
that  was  conditioned  by  the  task  which  the  Decemvirs  had  to 
perform — a  task  which  they  accomplished  with  an  astonishing 
degree  of  success.  Their  object  was  to  make  a  common  law  for 
i  Roman  society  considered  as  a  whole.  It  was  no  business  of  theirs 
to  abolish  patrician  privileges  or  to  remove  the  peculiarities  of 
patrician  ceremonial ;  but  they  had  to  find  a  system  of  Jus  which 
would  be  equally  valid  for  all  Romans  ;  and  this  they  naturally 
found  in  the  customary  law  of  the  mass  of  the  people  ;  that  is,  of  the 
Plebs.  They  were  forced  to  recognize  a  social  disability  of  the  Plebs, 
as  exemplified  in  the  absence  of  Conubium  with  Patricians  2  ;  for  to 
remove  it  would  have  been  an  alteration  of  the  Constitution  as  well 
as  an  infringement  of  patrician  rights.  But  how  completely  they 
ignored  the  existence  of  the  Plebs  as  a  separate  political  community 
is  shown  by  the  fact  that  the  tribunes  do  not  seem  to  have  been 
mentioned  in  the  law  at  all.  The  assumption  probably  was  that  the 
publication  of  the  Code  should  render  the  Tribunate  unnecessary  ; 
and  this  it  might  have  done,  had  the  patrician  government  lived  up 
to  its  promises. 

The  law  of  the  Twelve  Tables,  as  the  '  body  of  the  whole  of 
Roman  law '  ('  corpus  omnis  Romani  juris ')  and  the  '  fountain  of  all 
public  and  private  law'  (' fons  omnis  publici  privatique  juris') — 
designations  both  of  which  are  applied  to  it  by  Livy3 — contained 
ordinances  on  all  the  three  branches  of  Jus,  civil,  criminal  and  con- 
stitutional. In  the  matter  of  civil  law,  we  find  regulations  as  to 
marriage  and  family  relations,  inheritance,  testamentary  disposition, 
debt  and  usury.  The  marriage  recognized  was  that  known  as  the 
result  of  usus—  a  contract,  that  is,  which  was  concluded  by  consent 
and  strengthened  by  prescription 4.  It  was  ordained  that  the  three- 
fold sale  of  a  son  by  his  father  should  issue  in  the  freedom  of  the 
son 5 :  although  whether  the  Twelve  Tables  made  this  form  of 
emancipation  the  basis  of  adoption  is  uncertain.  The  manumission 
of  slaves  who  had  been  left  free  by  testament,  on  the  condition  of 
purchasing  their  freedom,  was  also  facilitated6.  Recognition  was 

1  Cf.   Diod.  xii.   26  j^  S«  ypcujxtffa  voiMOtaia,  $pa\eais  teal  airepirTois 
Siffifive  6av/j.a£o(ifV7)  fiexpt  ruiv  naff  Jjfuas  naipSiv. 

a  Cic.  de  Rep.  ii.  37,  63.  *  Liv.  iii.  34. 

*  Gaius,  L  111.  s  Gaius,  i.  132.  '  Ulpian,  Reg.  ii.  4. 


THE  TWELVE  TABLES  xxiii 

given  to  testamentary  disposition  as  performed  '  per  aes  et  libram ' l  • 
while,  in  the  matters  of  intestate  inheritance  and  guardianship,  the 
rights  of  the  Agnati,  common  to  Plebeians  and  Patricians,  were 
regarded  as  prior  to  those  of  the  Gentiles 2.  The  harsh  law  of  debt, 
which  was  a  result  at  once  of  freedom  of  contract  and  of  the  very 
severe  view  which  ancient  societies  take  of  the  defaulting  debtor, 
was  maintained  ;  the  Judicatus  still  became  the  bondsman  of  his 
creditor3,  but  now  (perhaps  for  the  first  time),  all  the  stages  of  the 
process  of  execution  were  published  to  the  world,  the  rights  of  the 
creditor  were  defined,  the  chances  of  escape  open  to  the  debtor  were 
accurately  described.  Loans  on  interest  were  permitted  ;  but  the 
maximum  rate  of  interest  was  fixed  at  '  unciarium  foenus ' 4  (probably 
ten  per  cent.) ;  and  the  usurer  who  exceeded  this  rate  was  punished 
more  severely  than  the  ordinary  thief ;  he  was  compelled  to  restore 
fourfold  5.  With  respect  to  Civil  Procedure  (the  exclusive  knowledge 
of  which  had  been  one  of  the  greatest  elements  of  strength  in  the 
patrician  government)  it  is  clear  that  the  outlines  of  the  process — 
such  as  the  rules  for  the  summons  of  parties  and  witnesses,  and  for 
the  length  of  the  trial 6 — were  described.  But  it  is  very  questionable 
whether  the  Tables  went  so  far  as  to  specify  the  Forms  of  Action  ; 
the  actual  words  and  gestures,  that  is,  which  had  to  be  employed 
in  any  given  case.  We  find  a  tradition  that  these  forms  were  not 
revealed  until  nearly  150  years  later,  and  that  they  were  first  given 
to  the  world  in  304  B.  c.  by  a  certain  Cnaeus  Flavius7,  a  freedman's 
son  and  the  clerk  of  Appius  Claudius,  the  censor  of  312  B.C.,  who 
was  apparently  also  pontiff.  But  the  traditions  connected  with  the 
publication  at  Rome,  even  of  the  simplest  information  about  Pro- 
cedure, are  exceedingly  obscure.  On  the  one  hand,  we  hear  that 
this  same  Cnaeus  Flavius  published  a  Calendar  which  gave  a  record 
of  Court  Days  (Dies  Fasti) 8 ;  on  the  other  hand,  it  was  believed  that 
a  Calendar  of  some  kind  had  been  already  published  by  the 
Decemvirs9.  It  is  possible  that  the  decemviral  Calendar  had 
become  antiquated,  or  that  it  had  not  been  restored  or  republished 
after  the  burning  of  Rome  by  the  Gauls  (390  B.  c.) 10 ;  but  it  is  clear 
that  the  Romans  of  Cicero's  time  had  much  vaguer  ideas  about  the 
epoch  at  which  the  forms  of  Procedure  were  made  accessible  to  the 
public,  than  they  had  about  the  date  at  which  the  principles  of 
Substantive  Law  were  given  to  the  world. 

Cic.  de  Inv.  ii.  50.  148 ;  [Cic.]  ad  Her.  i.  13.  23  ;  Gaius,  ii.  224. 

Ulpian  in  Collatio,  16.  4.2.  3  Gell.  xv.  13.  11  ;  xx.  1.  45. 

Tac.  Ann.  vi.  16.  6  Cato,  de  Re  Rust,  praef. 

Brims,  Fontes,  i.  2,  Tab.  i. 

Cic.  de  Or.  i.  41.  185  ;  ad  Att.  vi.  1.  8  ;  Liv.  ix.  46.  5. 

8  Cic.  ad  Alt.  I.e. ;  pro  Mur.  11.  25  ;  Liv.  I.e.  ;  Plin.  H.N.  xxxiii.  1.  17. 

9  Macrob.  i.  13.  21.  lu  Liv.  vi.  1 ;  Cic.  ad  Att.  I.  c. 


xxiv  HISTORICAL  INTRODUCTION 

The  criminal  law  of  the  Twelve  Tables  reflects  a  more  primitive 
stage  of  thought  than  its  civil  ordinances.  But  this  is  not  sur- 
prising ;  for,  throughout  the  whole  of  Eoman  History,  the  criminal 
law  lags  far  behind  the  civil.  The  Tables  recognize  the  principles 
of  self-help  and  retaliation.  A  limb  is  to  be  given  for  a  limb  ;  but  for 
minor  assaults  pecuniary  compensation  is  allowed  \  We  still  find 
the  idea  of  capital  punishment  taking  the  form  of  an  expiation  to  an 
outraged  deity ;  thus  the  man  who  destroyed  standing  corn  by  night 
was  hanged  as  an  offering  to  Ceres  2.  The  belief  in  witchcraft  still 
survives  ;  for  death  is  the  penalty  for  incantations 3.  It  is  also  the 
penalty  on  the  judex  who  has  taken  bribes,  and  for  treason 
(Perduellio)  in  the  form  of  '  rousing  an  enemy  against  the  State  or 
handing  over  a  citizen  to  the  enemy4.' 

But  it  is  where  criminal  law  touches  questions  of  personal  liberty, 
and  is  connected  with  constitutional  law,  that  the  legislation  of  the 
Twelve  Tables  is  most  advanced.  The  principle  of  the  Appeal  to  the 
People  (Provocatio)  against  the  sentence  of  the  magistrate  was 
maintained 5 ;  it  was  enacted  that  no  law  or  sentence  should  be 
passed  to  the  detriment  of  an  individual  (Privilegia  ne  inroganto)6  ; 
and  it  was  laid  down  that  no  capital  sentence  could  be  issued  except 
by  '  the  greatest  of  the  Comitia '  (nisi  per  maximum  comitiatum) 7 ; 
that  is,  by  the  Assembly  of  the  Centuries,  or  Exercitus,  gathered  in 
the  Campus  Martius. 

An  important  aspect  of  the  Public  Law  of  the  Twelve  Tables  is 
the  guarantee  of  the  right  of  free  association,  provided  that  it  have  no 
illegal  intent.  While  nocturnal  gatherings  (coetus  nocturni)  are 
prohibited  8,  the  formation  of  gilds  (collegia)  is  encouraged.  Such 
gilds  were  to  require  no  special  permit  for  their  existence,  and  the 
rules  which  they  framed  for  their  own  government  were  to  be  valid, 
provided  that  these  rules  were  no  infringement  of  public  law  9. 

Lastly,  the  most  typical  and  important  utterance  of  the  Tables  is 
to  be  found  in  the  injunction  that  '  the  last  command  of  the  People 
should  be  final 10.'  It  is  an  utterance  which  shows  how  little  the 
Decemvirs  regarded  their  own  work  as  final,  how  little  they  were 
affected  by  the  Greek  idea  of  the  unalterability  of  a  Code,  of  a  Code 
forming  a  perpetual  background  of  a  Constitution — in  fact,  by  the 
idea  of  a  fixed  or  written  Constitution  at  all.  It  is  an  utterance  that 
expresses  the  belief  that  law  is  essentially  a  matter  of  growth,  and 


Gell.  xx.  1.  12-14.  2  Plin.  H.N.  xviii.  3.  12.          3  Cic.  de  Rep.  iv.  10.  12. 

Marcian  in  Dig.  48.  4.  3.  5  Cic.  de  Rep.  ii.  31.  54. 

Cic.  de  Leg.  iii.  4.  11.  7  Cic.  de  Leg.  I.  c. 

Seel,  in  Catil.  19.  9  Gaius  in  Dig.  47.  22.  4. 

0  '  Ut  quodcumque  postremum  populus  jussisset,  id  jus  ratumque  esset '  (Liv. 
vii.  17). 


THE  LEGISLATIVE  ASSEMBLIES  xxv 

prepares  us   for  the  fact  that  Eome  saw  no  further  scheme  of  suc- 
cessful codification  until  nearly  a  thousand  years  had  passed. 

§  10.   Future  Progress  of  Law.    Legislation  and  Interpre- 
tation;   the  Legislative  Assemblies. 

For  the  future  the  progress  of  law  was  to  depend  on  the  two 
processes  of  legislation  and  interpretation.  The  legislative  assemblies 
were  those  of  the  Populus  and  the  Plebs.  The  Populus,  which 
comprised  the  whole  of  the  Koman  people,  Patricians  as  well  as 
Plebeians,  met,  either  by  centuries,  as  the  Comitia  Centuriata,  or 
by  tribes,  as  the  Comitia  Tributa,  under  the  presidency  of  a  Consul 
or  Praetor. 

The  Comitia  Centuriata  was  an  assembly  that  had  grown  out  of  the 
army-organization  of  the  whole  Eoman  people.  It  was  the  whole 
Host  or  Exercitus  expressing  its  political  will.  It  was  for  this 
reason  that  the  military  unit  (the  centuria)  was  the  voting  unit. 
And  this  was  also  the  original  reason  why  we  find  in  this  assembly 
the  division  into  classes,  or  aggregates  of  citizens  grouped  together 
on  the  basis  of  a  particular  property  qualification  ;  for  the  different 
types  of  military  service  were  originally  determined  by  degrees  of 
wealth.  But  the  element  of  wealth  in  this  assembly,  which  is 
exhibited  by  the  division  into  classes,  soon  gained  a  political 
significance.  The  voting  power  of  the  classes  differed  considerably. 
That  of  the  wealthy  was  greater  than  that  of  the  middle-class, 
and  that  of  the  middle-class  far  in  excess  of  that  of  the  poor.  Thus 
the  Comitia  Centuriata  was  always  assumed  to  have  something  of  an 
aristocratic  character ;  and  the  change  which  its  constitution  under- 
went during  the  Kepublic  was  at  least  partly  directed  by  an  effort  to 
modify  this  character.  The  scheme  recognized  five  classes,  the 
census  of  each  being  (in  terms  of  the  later  assessment  of  the 
historical  period)  respectively  100,000,  75,000,  50,000,  25,000,  and 
11,000  (or  12,500)  asses.  The  first  class  contained  eighty  centuries, 
the  second,  third,  and  fourth,  twenty  each  ;  the  fifth,  thirty.  Thus  the 
centuries  of  the  first-class  were  almost  equal  to  those  of  the  four  other 
classes  put  together.  The  weight  of  aristocratic  influence  may  be 
still  more  fully  realized  if  we  remember  that  the  corps  of  Koman 
Knights  (centuriae  equitum  equo  publico)  formed  eighteen  centuries 
in  this  assembly,  and  that  the  mass  of  citizens  whose  property  fell 
below  the  minimum  census  were  grouped  in  a  single  century.  The 
collective  vote  of  the  first  class  and  the  knights  was  represented  by 
ninety-eight  centuries  ;  the  collective  vote  of  the  whole  of  the  rest  of 
the  community  (including  four  or  five  centuries  of  certain  professional 
corporations  connected  with  the  army,  such  as  the  Fabri)  was 


xxvi  HISTORICAL  INTRODUCTION 

represented  by  ninety-five  or  ninety-six  centuries  \  Thus  the  upper 
classes  in  the  community  possessed  more  than  half  the  votes  in  this 
assembly. 

A  modification  in  the  structure  of  the  Comitia  Centuriata  was 
subsequently  effected,  which  had  the  result  of  giving  a  more  equal 
distribution  of  votes.  No  precise  date  can  be  assigned  for  the 
change ;  but  it  has  been  thought  not  to  be  earlier  than  241  B.  c., 
the  year  in  which  the  number  of  the  tribes  was  raised  to  thirty-five2. 
The  principle  of  the  new  arrangement  was  that  the  tribe  was  made 
the  basis  of  the  voting  power  of  the  classes.  There  is  considerable 
divergence  of  opinion  as  to  the  method  in  which  the  centuries  were 
distributed  over  the  tribes ;  but,  according  to  the  more  usually 
accepted  view  which  has  been  held  by  scholars  from  the  seventeenth 
century  onwards 3,  the  five  classes  were  distributed  over  all  the 
tribes  in  such  a  manner  that  there  were  two  centuries  of  each  class — 
one  century  of  Seniores  and  one  of  juniores — in  a  single  tribe.  Each 
class  would  thus  have  two  votes  in  each  tribe  and  seventy  votes  in 
all.  The  total  number  of  centuries  belonging  to  the  five  classes 
would  be  350,  of  which  the  first  class  would  possess  but  seventy 

1  The  scheme  was  as  follows  : — 

THE  CAVALBT. 

18  centuries,  chosen  from  the  richer  classes  (Dionys.  iv.  18),  but  probably 
with  no  fixed  property  qualification. 

THE  INFANTRY. 

1st  classis— 100,000  asses  (Liv.  i.  43,  Dionys.  iv.  16,  Polyb.  vi.  23) ;  120,000 
asses  (Plin.  H.  N.  xxxiii.  3,  Festus,  p.  113). 
Seniores,  40  centuries  )    OQ 
Juniores,  40  centuries  ( 

2nd  classis — 75,000  asses  (Livy  and  Dionysius). 
Seniores,  10  centuries  )    OQ 
Juniores,  10  centuries  \ 

8rd  classis — 50,000  asses  (Livy  and  Dionysius). 
Seniores,  10  centuries  )    20 
Juniores,  10  centuries  ) 

ith  classis — 25,000  asses  (Livy  and  Dionysius). 
Seniores,  10  centuries  )    ~0 
Juniores,  10  centuries  \ 

5th  classis— 11,000  asses  (Livy)  ;  12,500  (12£  minae,  Dionysius). 
Seniores,  15  centuries  )    «« 
Juniores,  15  centuries  \ 

Fabri— 2  centuries  (voting  with  the  1st  class,  Livy  ;\  5  centuries  (Livy). 
with  the  2nd  class,  Dionysius). 

Accensi,    cornicines,   tibicines,   3   centuries,  r  4  centuries  (Dionysius). 
Livy ;    2    centuries,    Dionysius    (voting 
with  the  4th  class,  Dionysius). 
Capite  censi  or  Proletarii,  1  century  (Livy).      1  century. 

Total  193  or  194  centuries. 

3  Cf.  Liv.  i.  43.     He  describes  the  new  organization  as  existing  '  post  expletas 
quinque  et  triginta  tribus.'    Yet  he  does  not  say  that  it  began  its  existence  at 
that  date.     Mommsen  (Staatsrecht,  iii,  p.  270)  conjecturally  assigns  the  change  to 
the  censorship  of  C.  Flaminius  (220  B.C.). 
8  This  system  was  first  suggested  by  Pantagathus,  who  died  in  1657. 


THE  LEGISLATIVE  ASSEMBLIES  xxvii 

votes  ;  or,  if  we  add  the  other  centuries  of  knights  (18),  of  corporate 
bodies  such  as  the  Fabri  (4),  and  of  Proletarii  (1),  we  find  that  the 
first  class  and  the  knights  commanded  but  eighty-eight  votes  out  of 
a  total  of  373 1.  This  system,  which  lessened  the  influence  of  the 
wealthier  classes,  was  temporarily  abolished  by  Sulla  in  88  B.C.2; 
but  it  was  soon  restored,  and  there  is  every  reason  to  suppose  that  it 
survived  the  Republic  and  formed  the  basis  of  the  arrangement  of  the 
Comitia  Centuriata  under  the  Principate3.  Although  the  Comitia 
was  organized  on  this  tribal  basis  for  the  distribution  of  voting  power, 
the  voting  unit  was  still  the  century  and  not  the  tribe.  The  seventy 
centuries  of  each  class  voted  in  turn ;  the  decision  of  each  century 
was  determined  by  the  majority  of  the  votes  of  its  individual 
members  ;  and  the  majority  of  the  centuries  determined  the  decision 
of  the  assembly. 

The  Comitia  Centuriata,  although  of  the  utmost  importance  in  the 
structure  of  the*  Roman  Constitution  as  the  body  that  elected  the 
magistrates  with  Imperium  and  the  censors,  that  exercised  capital 
jurisdiction  and  declared  war,  ceased  to  be  employed  in  the  period  of 
the  developed  Republic  as  an  ordinary  legislative  assembly.  It  was 
difficult  to  summon  and  unwieldy  in  its  structure,  and  its  position 
as  a  legislative  body  came  to  be  usurped  by  the  two  assemblies  of  the 
tribes.  Yet,  as  we  shall  see  *,  it  may  have  been  held  that  legislative 
acts,  which  affected  the  fundamental  principles  of  the  Constitution, 
should  be  submitted  to  the  centuries. 

The  Comitia  Tributa  Populi  had  probably  been  instituted  in 
imitation  of  the  Plebeian  Assembly  of  the  Tribes.  It  was  found 
convenient  that  the  Populus  should  meet  in  this  way  as  well  as  the 
Plebs  ;  and  the  Tribus — the  voting  unit  which  had  already  been 
employed  for  assemblies  of  the  Plebs — was  used  for  assemblies  of 
the  whole  people.  The  Tribus  was  always  a  division  of  the  territory 
of  the  Roman  State  in  Italy,  and  the  tribes  grew  in  number  as  this 
territory  increased  until  by  the  year  241  B.C.  they  had  reached  their 
final  total  of  thirty-five.  It  is  generally  believed  that  originally  only 
holders  of  land  were  registered  as  members  of  a  tribe 5 ;  but  there  is 

1  Mommsen's  system  (Staatsr.  iii,  p.  275)  is  different,  and  is  based  on  the  view 
that  the  description  given  by  Cicero  (de  Rep.  ii.  22. 39, 40)  refers,  not  to  the  older 
arrangement,  but  to  the  reformed  Comitia.     Mommsen  allows  the  70  votes  for 
the  70  centuries  of  the  first  class,  but  thinks  that  the  280  centuries  of  the  other 
classes  were  combined  so  as  to  form  only  100  votes.     The  total  votes  in  the 
Comitia  would  thus  be  70  +  100  +  5  (Fabri,  &c.)  +  18  (Knights);  i.e.  193  in  all,  as 
in  the  earlier  arrangement. 

2  App.  Bell.  Civ.  i.  59. 

3  This  Comitia  seems  still  to  have  met  for  formal  business  as  late  as  the  third 
century  A.D.     At  least  Dio  Cassius  (Consul  219  or  220  A.D.)  describes  the  flying 
of  the  flag  from  the  Janiculum  as  a  custom  still  surviving  in  his  day  (xxxvii.  28). 

4  P.  xxix. 

'  This  was  tke  view  taken  by  Mommsen  (Staatsr.  iii,  pp.  182,  184).     He  held 

C  2 


xxviii  HISTORICAL  INTRODUCTION 

no  sufficient  evidence  for  this  view,  and  it  seems  safer  to  conclude 
that,  while  every  holder  of  land  was  registered  in  the  tribe  in  which 
his  allotment  lay,  every  landless  man  was  registered  in  the  tribe  in 
which  he  had  his  domicile.  At  a  later  period  registration  became 
more  arbitrary,  and  had  little  or  nothing  to  do  with  the  residence  of 
the  person  registered.  The  censor  enrolled  individuals  in  tribes  at 
his  pleasure  ;  usually  he  entered  a  man  in  the  tribe  to  which  his 
father  had  belonged  ;  but  he  might,  if  he  willed,  transfer  him  from 
one  tribe  to  another  (tr-ibu  movere). 

In  an  assembly  organized  by  tribes  (tributim)  the  vote  of  the 
majority  of  the  members  of  a  particular  tribe  determined  the  decision 
of  that  tribe,  and  the  vote  of  a  majority  of  the  tribes  the  decision  of 
the  assembly.  The  Comitia  Tributa  Populi  must  have  been 
instituted  later  than  471  B.  c.,  which  is  the  traditional  date  at  which 
the  Plebs  began  to  meet  by  tribes J  ;  and  it  may  have  been  in  existence 
some  twenty  years  later,  at  the  date  of  the  formation  of  the  Twelve 
Tables 2.  The  first  evidence  for  it  as  a  legislative  assembly  belongs 
to  the  year  357  B.  c.  s.  In  the  later  Republican  period  it  was 
probably  quite  the  most  active  of  the  legislative  assemblies  of  the 
whole  people. 

The  Comitia  Curiata,  the  oldest  of  all  the  Roman  assemblies, 
whose  structure  was  based  on  the  ancient  Curiae  or  Parishes  of 
Rome,  ceased  in  the  historical  period  to  be  a  true  legislative  assembly. 
It  met  only  for  the  performance  of  certain  formal  acts,  such  as  the 
lex  curiata  which  ratified  the  Imperium  of  the  higher  and  the  Potestas 
of  the  lower  magistrates 4.  For  this  purpose  the  thirty  Curiae  were 
in  Cicero's  day  often  represented  by  but  thirty  lictors 5.  The 
assembly  may  have  been  as  scantily  attended  when  it  performed  the 
formal  acts  vested  in  it  when  it  met  as  the  Comitia  Calata 6.  In  this 

(ii,  p.  403)  that  Appius  Claudius,  the  censor  of  312  B.C.,  first  included  the 
landless  citizens  in  the  tribes  (cf.  Girard,  Manuel,  p.  31) ;  but  our  authorities 
(Diod.  xx.  46,  Liv.  ix.  46)  only  represent  Appius  Claudius  as  allowing  citizens 
to  be  registered  where  they  pleased,  and  as  spreading  the  lower  classes  (humiles) 
over  all  the  tribes.  The  definition  which  we  possess  of  the  Comitia  Tributa 
(Laelius  Felix  ap.  Gell.  xv.  27)  speaks  of  it  only  as  an  assembly  at  which  the 
votes  are  given  '  ex  regionibus  et  locis.' 

1  Liv.  ii.  56.  Previously  it  had  probably  met  by  Curiae.  Hence  the  tradition 
that  the  early  tribunes  were  elected  in  the  Comitia  Curiata  (Liv.  I.  c.,  Cic.  ap. 
Ascon.  fn  Cornelian,  p.  76). 

3  When  the  Tables  enacted  '  De  capite  civis  nisi  per  maximum  comitiatum 
.  .  .  ne  ferunto '  (Cic.  de  Leg.  iii.  4.  11),  this  mention  of  the  'greatest  Comitia' 
(i.  e.  the  Comitia  Centuriata)  seems  to  imply  the  existence  of  a  lesser  Comitia 
with  judicial  powers ;  and  the  latter  could  scarcely  have  been  the  Comitia 
Curiata  of  the  period. 

3  Liv.  vii.  16. 

4  For  the  application  of  the  lex  curiata  to  the  minor  magistracies,  as  well  as 
to  those  with  Imperium,  see  Messala  ap.  Gell.  xiii.   15.  4  '  Minoribus  creatis 
magistratibus  tributis  comitiis  magistratus,  sed  Justus  curiata  datur  lege.' 

6  Cic.  de  Leg.  Agr.  ii.  12.  31.  6  Gaius,  ii.  101 ;  Gell.  xv.  27. 


THE  CONCILIUM  PLEBIS  xxix 

capacity  it  was  gathered  under  the  presidency  of  the  Pontifex 
Maximus  for  the  inauguration  of  the  Eex  Sacrorum  and  the 
Flamines,  and  for  the  Detestatio  Sacrorum — the  renunciation  of  pre- 
existing religious  obligations  which  was  made  by  a  man  who  passed 
from  his  Gens,  either  by  an  act  of  Adrogatio  or  by  transition  from 
the  patrician  to  the  plebeian  order  \ 

The  assembly  of  the  Plebs 2  excluded  the  patrician  members  of  the 
community,  and  continued  to  be  organized  by  tribes.  Its  true 
designation  was  Concilium  Plebis,  Concilium  differing  from  Comitia 
as  a  gathering  of  a  part  of  the  people  differs  from  a  gathering  of  the 
whole  3.  This  assembly  -is  often  spoken  of  by  ancient  writers  as  the 
Comitia  Tributa  ;  but  it  differed  from  the  Comitia  Tributa  Populi  in 
two  respects.  It  did  not  include  Patricians,  and  it  was  presided  over, 
not  by  a  magistrate  of  the  People,  but  by  a  magistrate  of  the  Plebs. 
When  it  met  for  legislative  purposes,  it  was  presided  over  only  by 
the  Tribune  of  the  Plebs.  The  legislative  authority  of  the  Concilium 
Plebis  had  developed  steadily  during  the  first  two  centuries  of  the 
Republic.  At  first  this  assembly  could  only  pass  ordinances  binding 
on  the  members  of  the  Plebs  themselves.  Then,  by  the  Valeric- 
Horatian  and  Publilian  laws  (449  and  339  B.C.)  it  gained  the  right  of 
considering  and  initiating  proposals  which  affected  the  interests  of 
the  whole  community ;  this  right  being  probably  acquired  and 
exercised  by  the  creation  of  increasing  facilities  for  bringing 
resolutions  of  the  Plebs  as  petitions  to  the  assemblies  of  the  people, 
to  be  confirmed  or  rejected  by  the  latter4.  Since  the  Plebs  came 
gradually  to  constitute  the  majority  of  voters  in  the  assemblies  of 
the  people,  these  petitions  must  as  time  went  on  have  been  almost 
invariably  confirmed.  The  distinction  between  Plebiscite  and  Leges 
must  have  been  growing  more  and  more  formal  and  unreal  when 
the  LexHortensia(287  B.  c.)  enacted  that  henceforth  Plebiscita  should 
have  the  force  of  Leges5.  From  this  time  onwards  there  was  no 
difference  between  the  Populus  and  the  Plebs  in  matters  of  legislation, 
except  that  it  may  have  been  held  by  some  thinkers  that  fundamental 
changes  in  the  Constitution,  such  as  those  introduced  by  Sulla,  ought 

1  Gell.  I  c.  *  P.  xxi. 

3  Laelius  Felix  ap.  Gell.  xv.  27  '  Is  qui  non  [ut]  universum  populum,  sed 
partem  aliquam  adesse  jubet,  non  "  comitia,"  sed  "concilium"  edicere  debet.' 
See  Mommsen,  Staatsr.  in,  p.  149. 

4  Strachan-Davidson,  starting  from  the  view  that  Plebiscita  were  originally 
sent  as  petitions  to  the  consuls  and  senate  (cf.  Dionys.  x.  31),  suggests  that  the 
Valerio  Horatian  law  may  have  '  laid  down  that  the  consul  must  so  consult  the 
senate,  or  it  may  even  have  forbidden  him  arbitrarily  to  disregard  a  recom- 
mendation of  the  senate  (should  such  be  obtained)  that  he  should  put  the 
question  to  the  populus' ;  and  that  the  Publilian  law  '  may  have  struck  out  the 
intervening  consultation  of  the  senate,  and  may  have  required  the  consul  to 
bring  the  petition  of  the  plebs  at  once  before  the  populus '  (Smith,  Diet,  of  Antiq. 
ii,  p.  439).  s  Gaius,  i.  3 ;  Pompon,  in  Dig.  1.  2.  2.  8. 


xxx  HISTORICAL  INTRODUCTION 

to  be  ratified  by  the  Comitia  Centuriata1.  But  in  nearly  all  the 
spheres  subject  to  the  commands  of  the  people,  the  Populus  and  the 
Plebs  were  equally  competent ;  a  Lex  could  repeal  a  Plebiscitum  and 
a  Plebiscitum  a  Lex  *.  This  dual  sovereignty,  which  is  one  of  the 
most  curious  of  the  theoretical  features  of  the  Koman  Constitution, 
was  rendered  possible  and  harmless  by  the  fact  that  the  mass  of  the 
voters  in  all  the  different  assemblies  were  composed  of  the  same 
individuals,  and  by  the  central  control  exercised  by  the  Senate  over 
all  magistrates,  and  therefore  over  all  assemblies  before  which  these 
magistrates  introduced  their  proposals.  The  initiation  of  legislation 
was,  in  fact,  during  the  days  of  Eepublican  stability,  in  the  hands  of 
the  Senate  ;  but,  apart  from  the  exercise  of  this  authority,  which  had 
long  had  a  de  facto  recognition,  but  was  not  recognized  by  law  until 
the  time  of  Sulla  (88  and  81  B.  c.)3,  the  Senate  did  not  pretend  to 
exercise  legislative  power  during  the  Eepublic.  In  its  own  right 
it  could  only  exercise  certain  powers  approximating  to  those  of 
legislation.  We  find  it,  for  instance,  fixing  the  rate  of  interest 4 ; 
but  such  an  ordinance  technically  assumed  the  form  merely  of 
advice  to  the  judicial  magistrates  as  to  the  rates  which  they  should 
recognize  in  their  edicts.  The  Senate,  however,  exercised  the  power 
of  dispensing  individuals  from  the  existing  laws 5 ;  and  we  find  it 
also  warning  the  community  that  some  enactment  which  had  passed 
the  people  was,  on  technical  grounds,  invalid,  and  was  therefore  not 
binding  either  on  the  magistrates  or  on  any  member  of  the  State  6. 

In  few  societies  of  the  ancient  world  was  the  legislative  power 
so  unfettered  as  it  was  at  Rome.  The  Romans  drew  no  distinction 
between  constitutional  law  and  other  laws ;  the  Roman  assemblies 
could  create  new  assemblies,  could  alter  their  own  structure,  could 
modify  or  even  suspend  the  Constitution  by  granting  enormous 
powers  to  individuals.  There  was  no  sphere  of  human  interest 
outside  their  control ;  their  power  of  utterance  was  limited  only  by 
a  respect  for  religious  law7.  We  might,  therefore,  have  expected 
that  legislation  would  have  been  the  chief  path  on  which  Roman 
law  advanced  to  its  maturity.  But  this  expectation  is  disappointed, 
so  far  as  the  progress  of  the  Jus  Privatum  is  concerned.  We  do 
indeed  find  a  certain  number  of  statutes  which  deal  with  important 
matters  of  private  law,  such  as  the  Lex  Aquilia  de  Damno,  the  Lex 

1  We  know,  at  least,  that  some  of  Sulla's  legislation  was  effected  through  the 
Comitia  Centuriata  (Cic.  pro  Dom.  30.  79). 

Thus,  Cicero  was  exiled  by  a  Plebiscitum,  but  restored  by  a  Lex  Centuriata. 

App.  Bell.  Civ.  i.  59.  *  Cic.  ad  Att.  v.  21.  13. 

Ascon.  in  Cornelian,  p.  58. 

Cic.  pro  Domo,  16.  41  ;  Ascon.  in  Cornelian,  p.  68. 

Hence  the  saving  clause  in  enactments,  '  Si  quid  sacri  sancti  est  quod  non 
jure  sit  rogatum,  ejus  hac  lege  nihil  rogatur '  (Probus).  Cf.  Cic.  pro  Caec.  33.  95. 


INTERPRETATION  BY  THE  MAGISTRATE      xxxi 

Furia  on  testaments,  the  Lex  Voconia  on  inheritances ;  and  it  is  also 
true  that  certain  important  changes  in  civil  procedure  were  sanctioned 
by  the  people,  the  most  far-reaching  of  these  changes  sing  perhaps 
that  effected  by  the  Lex  Aebutia,  which  helped  to  replace  the  Legis 
Actio  by  the  Formula  l.  But  the  legislation  referring  to  private  law 
and  civil  procedure  at  Rome  is  in  no  way  comparable  in  bulk  to 
that  which  dealt  with  criminal  and  constitutional  law.  Even  those 
Leges  or  Plebiscita  that  dealt  with  civil  procedure,  perhaps  did  little 
more  than  ratify  a  change  that  had  been  already  accomplished  in  the 
courts,  or  carry  this  change  a  few  steps  further.  And,  as  to  the 
alterations  in  the  material  elements  of  private  law,  these  alterations 
were  determined  to  a  far  greater  extent  by  interpretation  than  by 
legislation. 

§11.  Law  as  the  result  of  Interpretation. — Interpretation 
by  the  Magistrate. 

Interpretation  at  Rome  assumed  two  forms.  It  was  either  the 
work  of  the  magistrate  or  the  work  of  the  jurisconsult.  The 
magistrate  chiefly  concerned  with  the  interpretation  of  private  law 
was  the  Praetor.  The  office  of  Praetor  is  said  to  have  originated 
as  a  result  of  the  Licinian  laws  of  367  B.  c. 2  This  new  magistrate 
was  created  for  the  purpose  of  performing  most  of  the  judicial 
business  of  the  Consuls,  who,  on  account  of  the  increasing  complexity 
of  political  life,  were  found  incapable  of  conducting  the  whole  of  the 
home  and  foreign  affairs  of  Rome.  For  more  than  120  years  this 
single  magistrate  administered  civil  justice  to  citizens  and  aliens. 
At  the  close  of  this  period  (242  B.C.)  a  second  Praetor  was  appointed3 
whose  duty  it  was  to  decide  cases  between  aliens  (Peregrini)  and 
between  citizens  and  aliens.  The  former  (Praetor  qui  inter  cives  jus 
dicit)  was  known  by  the  colloquial  name  of  Praetor  Urbanus ;  the 
latter  (Praetor  qui  inter  peregrinos  jus  dicit)  was  known  by  the 
similarly  abbreviated  title  of  Praetor  Peregrinus. 

Every  magistrate  at  Rome  was  in  the  habit  of  notifying  to  the 
public  the  manner  in  which  he  meant  to  exercise  his  authority,  or 
any  change  which  he  comtemplated  in  existing  regulations,  by  means 
of  a  public  notice  (Edictum).  In  the  case  of  magistrates  who  were 
merely  concerned  with  administrative  work,  such  notices  were  often 
occasional  (edicta  repentina) ;  in  the  case  of  magistrates  concerned 
with  judicial  business,  they  were  of  necessity  valid  for  the  whole 
period  during  which  the  magistrates  held  their  office,  and  capable  of 

1  P.  xl.  a  Liv.  vi.  42. 

3  Liv.  Ep.  19.  The  date  is  not  quite  certain.  Lydus  (de  Mag.  i.  38)  places  the 
event  in  247  B.  c.  See  Mommsen,  Staatsr.  ii,  p.  196. 


xxxii  HISTORICAL  INTRODUCTION 

transmission  to  their  successors  (perpetua  et  tralaticia)  ;  for  juris- 
diction does  not  admit  of  occasional  and  isolated  ordinances  which 
have  only  a  temporary  validity.  The  edicts  of  the  Praetors  were 
necessarily  of  this  latter  type.  Each  new  occupant  of  the  office 
might  admit  rulings  not  recognized  by  his  predecessors ;  these 
rulings  were  forced  on  him  by  the  fact  that  new  and  unexpected 
combinations  in  legal  relations  had  been  presented  to  his  notice,  or 
that  the  existing  rules  did  not  answer  to  a  growing  sense  of  equity. 
New  rulings  cannot  be  introduced  into  a  system  of  law  without 
affecting  old  ones.  The  fact  that  there  was  an  edict  gave  the 
Praetor  a  chance  of  smoothing  out  anomalies,  instead  of  exhibiting 
inconsistencies,  in  the  law.  The  edict  admitted  of  change  and 
development ;  but  it  was  a  change  that  was  subtle  and  gradual,  not 
violent  and  rapid.  The  process  by  which  it  was  reached  professed 
to  be  a  process  of  interpretation.  It  was  really  creative  work  of 
a  highly  original  kind. 

The  Edictum  of  the  Praetor  *,  in  the  sense  in  which  this  word 
is  commonly  used,  is  really  a  colloquial  expression  for  the  Album, 
or  great  notice-board  exhibited  by  the  Praetor,  which  contained 
other  elements  besides  the  Edicta  in  their  true  and  proper  sense. 
It  contained  the  Legis  Actiones  and  the  Formulae  of  the  Civil  Law 
(Jus  Civile) 2,  probably  preceded  by  certain  explanatory  headings,  but 
by  no  edict ;  for  the  Praetor  did  not  create  the  rulings  on  which 
these  civil  actions  and  formulae  were  based.  But  it  contained 
as  well  the  Formulae  which  were  the  creation  of  him  and  his  pre- 
decessors— the  Formulae  which  were  the  product  of  what  was  known 
as  'Magistrate's  Law'  (Jus  Honorarium);  and  each  of  these  Formulae 
was  no  doubt  preceded,  at  least  eventually,  by  the  Edictum  or  ruling 
in  law,  which  might  have  grown  out  of  the  Formula,  but  finally 
served  as  its  basis  and  justification.  Thus  the  edictal  part  of  the 
Album  was  really  a  series  of  separate  Edicta,  each  edict  being 
followed  by  its  Formula ;  it  was  regarded  as  being  a  supplement  to 
that  portion  which  specified  the  Actions  of  Civil  Law ;  and  it  really 
had  this  character  of  being  a  mere  supplement  in  so  far  as  'honorary' 
actions  were  seldom  granted  where  a  'civil'  action  would  have 
sufficed.  But  its  supplementary  character  was  of  a  very  far-reaching 
kind.  Thus  the  edicts  might  take  cognizance  of  cases  not  provided 
for  by  the  civil  law  at  all,  they  might  replace  the  mechanism  pro- 
vided by  the  civil  law  for  attaining  a  legal  end,  and  they  might  alter 
the  character  of  the  end  itself.  All  these  functions  are  summed  up 
by  Papinian  when  he  says  that  the  work  of  the  Jus  Praetorium  was 
'to  assist,  to  supplement,  to  correct  the  civil  law  for  the  sake  of 

1  See  Wlassak,  Edict  und  Klageform.  2  P.  xl. 


THE  EDICTA  PEKPETUA  xxxiii 

public  utility1.'  The  edict  of  the  Praetor  Peregrinus  was  necessarily 
still  more  of  a  substitute  for  the  civil  law  than  that  of  the  Praetor 
Urbanus.  For,  since  the  Legis  Actiones  could  not  (at  least  in  many 
cases)  be  employed  by  Peregrini  2,  he  was  forced  to  invent  equiva- 
lents for  these  forms  of  action. 

The  third  Edictum  Perpetuum  which  was  valid  in  Eome  was 
that  of  the  Curule  Aediles3.  It  was  of  no  great  content,  since  it 
was  concerned  exclusively  with  the  jurisdiction  over  the  market,  and 
the  control  of  public  sites — a  jurisdiction  and  control  which  were 
possessed  by  these  magistrates.  For  an  edict  in  any  way  com- 
parable to  those  of  the  Praetors  we  must  turn  to  the  provinces. 
Here  the  governors  (whether  Proconsuls  or  Propraetors)  issued 
notices  of  their  intentions  with  respect  to  jurisdiction,  similar  to 
those  of  the  Praetors  at  Eome  as  regards  their  permanent  character 
and  the  possibility  of  their  transmission,  but  peculiarly  applicable  to 
the  particular  governor's  special  sphere  of  administration.  A  special 
edict  was  issued  for  each  separate  province  (thus  we  read  of  an 
Edictum  Siciliense)  * ;  but  this  special  character  did  not  prevent 
certain  inter-relations  between  the  edicts  of  separate  provinces.  We 
know  that  the  Provincial  Edict  might  be  prepared  at  Rome,  before 
the  governor  went  to  his  province 5 ;  and  although  the  man  who  pre- 
pared it  (of  course,  with  the  assistance  of  professional  lawyers),  tried 
to  model  his  rules  as  closely  as  possible  on  those  of  his  predecessor 
in  the  province  to  which  he  was  going,  yet  he  might  borrow  im- 
provements which  had  been  initiated  by  the  late  governor  of  some 
other  province.  Again,  the  same  man  might  pass  from  one  province 
to  another,  and,  much  as  the  circumstances  of  the  separate  spheres 
of  government  differed  from  one  another,  it  is  inconceivable  that  he 
should  not  have  carried  some  of  his  favourite  rules  of  procedure  with 
him.  A  general  conception  of  what  a  Provincial  Edict  should  be 
like,  must  have  grown  up ;  the  differences  between  the  edicts  being 
probably  those  of  matter  rather  than  of  form — the  matter  being 
determined  by  the  local  customary  law  of  the  subject  peoples,  which 
Eome  rigidly  respected.  Where  there  were  striking  differences  of 
form,  these  must  have  been  mainly  due  to  the  varieties  of  rights 
granted  by  the  Charters  of  the  different  provinces  (Leges  Pro- 
vinciarum).  It  is  obvious  that,  where  much  was  granted  by  Charter, 
little  was  left  to  the  discretion  of  the  governor.  Where  the  Charter 
granted  only  a  few  elementary  rights,  he  had  a  much  freer  hand. 

1  '  Adjuvandi  vel  supplendi  vel  corrigendi  juris  civilis  gratia  propter  utilitatem 
publicam  '  (Papin.  in  Dig.  1.  1.  7.  1). 

2  It  has  sometimes  been  thought  that  Peregrini  were  wholly  excluded  from 
the  use  of  the  Legis  Actio.     See  Girard,  Manuel,  p.  110. 

3  Dig.  21.  1  ;  Cic.  de  Off.  iii.  17.  71 ;  Gell.  iv.  2. 

4  Cic.  in  Verr.  i.  45.  117.  5  Cic.  ad  Fam.  iii.  8.  4. 


xxxiv  HISTORICAL  INTRODUCTION 

One  important  point  in  which  the  governor  of  a  province  differed 
from  a  Praetor  at  Rome,  was  that  he  was  an  administrative  as  well 
as  a  judicial  official.  Hence  the  Provincial  Edict  had  to  contain 
a  good  many  rules  of  administrative  law  which  were  not  to  be 
found  in  its  counterpart  at  Konie.  This  portion  of  the  edict  spoke 
about  the  financial  relations  of  the  states  of  the  province  to  the 
Roman  government  and  to  its  agents,  and  stated  the  rules  which 
regulated  the  relations  of  the  tax-gatherers  (Publicani)  to  the  tax- 
payers. The  rest  of  the  edict  which  took  a  definite  shape,  covered 
the  procedure  which  the  governor  promised  to  apply  for  the  recovery 
of  certain  rights  by  individuals — rights  such  as  those  entailed  in  in- 
heritance or  the  seizure  of  a  debtor's  goods.  These  rules  were  based 
on  those  of  Roman  law;  but  they  were  mere  outlines  capable  of 
adaptation  to  the  local  customs  of  the  subject  states.  But  there  was, 
at  least  in  certain  provinces,  a  portion  of  the  edict,  still  dealing  with 
the  rights  of  individuals,  which  assumed  no  definite  shape.  There 
were  points  on  which  the  governor  did  not  care  to  frame  rules  until 
he  knew  the  emergencies  which  he  would  have  to  meet.  He  was 
content  (at  least  Cicero  was,  when  governor  of  Cilicia)  with  pro- 
mising that,  in  issuing  decrees  on  such  points,  he  would  conform  to 
the  principles  of  the  urban  edicts  1. 

§  12.   The  debts  which  this  development  of  law  owed  to  the 
Italian  and  provincial  world. 

If  we  ask  what  was  the  great  motive  power  which  lay  behind 
this  development  of  law  through  interpretation  by  the  magistrate, 
we  shall  find  it  to  consist,  partly  in  contact  with  foreign  peoples ; 
partly  (although  probably  in  a  less  degree)  in  the  new  educational 
influences  which  were  moulding  the  lives  of  the  Roman  nobles. 
The  tendency  to  experiment  and  adaptation,  to  a  disbelief  in  any- 
thing fixed  and  rigid,  is  thoroughly  Roman ;  but  external  circum- 
stances were  very  largely  responsible  for  the  particular  lines  on 
which  this  tendency  was  to  move.  The  legal  consequence  of  contact 
with  foreign  races  is  summed  up  in  the  phrase  Jus  Gentium.  The 
word  '  Gentes '  in  this  collocation  means  '  the  world  - ' ;  and  it  is 
possible  that,  when  the  expression  Jus  Gentium  was  first  formed, 

1  Cicero  thus  sketches  the  contents  of  the  whole  edict  which  he  published  as 
governor  of  Cilicia  (ad  Att.  vi.  1. 15)  : — '  Unum  (genus)  est  provinciale,  in  quo  est 
de  rationibus  civitatum,  de  aere  alieno,  de  usura,  de  syngraphis  ;  in  eodem  omnia 
de  publicanis.     Alterum,  quod  sine  edicto  satis  commode  transigi  non  potest,  de 
hereditatum  possessionibus,  de  bonis  possidendis  vendendis,  magistris  faciendis  : 
quae  ex  edicto  et  postulari  et  fieri  solent.    Tertium,  de  reliquo  jure  dicundo 
afpatpov    reliqui.      Dixi    me    de    eo    genere    mea    decreta    ad    edicta   urbana 
accommodaturum.' 

2  Clark,  Practical  Jurisprudence,  p.  354.     On  the  content  of  the  Jus  Gentium  see 
Nettleship,  Contributions  to  Latin  Lexicography,  p.  503 ;  Mommsen,  Staatsr.  iii,  p.  604. 


THE  JUS  GENTIUM  xxxv 

Rome  regarded  herself  as  rather  outside  this  world  whose  customs 
she  was  contemplating,  although  even  her  earliest  practice  showed 
an  inner  conviction  that  she  was  a  very  integral  part  of  it  indeed. 
The  moment  that  she  began  to  trade  with  the  foreigner,  whether  in 
Italy,  Sicily,  or  Africa,  she  must  have  seen  that  her  own  Jus  Civile 
was  an  impossible  basis  for  trading  relations.  If  the  Eoman  had 
no  liking  to  submit  to  the  intricacies  of  the  law  of  some  other  state, 
the  foreign  trader  had  equally  little  inclination  to  conform  to  the 
tedious  formalities  of  Eoman  law.  Some  common  ground  had  to  be 
discovered  as  the  basis  for  a  common  court,  which  might  adjudicate 
on  the  claims  of  Private  International  Law.  This  common  ground 
was  found  in  the  Jus  Gentium ;  the  common  court  was  that  of  the 
Eecuperatores  of  early  times  *.  The  history  of  the  Praetorship  leads 
us  to  think  that  the  Jus  Gentium  must  have  begun  to  exercise 
a  modifying  influence  on  Eoman  law  long  before  the  middle  of  the 
third  century  B.  c.  ;  for  we  have  seen  that  for  more  than  120  years 
a  single  Praetor  administered  justice  both  to  Gives  and  Peregrini  2. 
A  single  magistrate  therefore  published  and  dealt  with  two  distinct 
systems  of  law.  But  it  would  seem  to  be  impossible  that  he  could 
have  kept  the  two  absolutely  distinct,  especially  when  the  simplicity 
and  universality  of  the  Jus  Gentium  stood  in  marked  contrast  to  the 
complexity  and  singularity  of  the  Jus  Civile.  The  rigidity  of  the 
forms  of  Eoman  law  may  have  been  shaken  even  at  this  early  period. 
But  when  a  second  Praetor  was  appointed  to  frame  a  special  edict 
for  Peregrini,  the  Jus  Gentium  must  have  found  a  still  more  complete 
and  systematic  expression.  The  procedure  by  which  the  legal 
claims  of  aliens  were  asserted  must  have  been  more  fully  elaborated. 
This  was  the  procedure  by  Formula,  which  was  to  furnish  the  proto- 
type for  the  method  adopted  by  the  Praetor  Urbanus,  and  to  replace 
the  older  procedure  by  Legis  Actio  in  most  of  the  Eoman  courts  of 
law.  Nor  can  we  ignore  the  influence  of  the  Edictum  Provinciale, 
although  this  came  later  and  at  a  time  when  the  typical  elements  in 
Eoman  procedure  had  been  fixed.  Eome  gained  some  ideas  from 
the  Hellenised  East,  as  in  early  days  she  had  gained  some  from 
Magna  Graecia.  It  was  probably  from  contact  with  the  East  that 
she  gained  the  knowledge  of  such  simple  forms  of  written  agree- 
ment as  Syngrapha  and  Chirographa,  and  that  she  acquired  her 
theory  of  Mortgage  (Hypotheca). 

1  Festus,  p.  274  :  '  Keciperatio  est,  ut  ait  (Callus  Aelius,  cum  inter  populum  et 
reges  nationesque  et  civitates  peregrinas  lex  convenit  quomodo  per  reciperatores 
reddantur  res  reciperenturque,  resque  privatas  inter  se  persequantur.' 

2  P.  xxxi. 


xxxvi  HISTORICAL  INTRODUCTION 

§  13.   The  idea  of  the  Law  of  Nature  ;   its  influence 
on  Slavery. 

The  Jus  Gentium  could  not  pass  from  being  a  mere  fact  to  being 
an  ideal  without  gaining  some  theoretical  justification  for  its  existence 
and  acceptance.  This  justification  was  found  in  the  idea  that  it  was 
a  product  of  the  Law  of  Nature.  It  is  not  improbable  that  the 
superior  '  naturalness '  of  the  Jus  Gentium  to  the  Jus  Civile  had 
begun  to  appeal  to  the  Eomans  long  before  they  had  begun  to  be 
affected  by  Greek  philosophic  thought ;  for  we  know  the  effect  which 
was  produced  on  the  minds  of  the  Greeks  themselves  by  their  early 
contact  with  foreign  civilizations.  They  rapidly  drew  the  conclusion 
that  what  was  common  to  various  countries  existed  by  nature  (<£tio-«), 
what  was  peculiar  to  a  country  existed  by  convention  (v6(up)  •  and 
the  KOIVOS  vofjios  l  or  TO  (j)variKov  8tK<uoi> 2  of  the  Greeks  is  practically 
identical  with  the  Jus  Gentium  of  the  Eomans.  Even  to  the 
primitive  mind  the  universality  of  an  institution  implies  its  natural- 
ness. But  it  is  very  probable  that  the  Stoic  conception  of  Nature 
did,  to  the  Roman  mind,  complete  the  train  of  thought  and  give 
a  scientific  stability  to  a  vague  impression.  It  was  not,  indeed, 
possible  to  identify  the  Jus  Gentium  with  the  Lex  Naturae ;  for  a 
Jus  cannot  be  the  same  as  a  Lex.  But  it  might  be  regarded  as  the 
product  of  that  Lex,  as  its  concrete  expression  in  human  society. 
The  immediate  product,  however,  of  the  Lex  Naturae  is  the  Jus 
Naturale.  The  Jus  Gentium  tended,  therefore,  to  be  identified 
with  the  Jus  Naturale ;  and  the  identification  seems  to  be  complete 
except  in  one  important  point.  According  to  the  view  finally  adopted 
by  the  jurists,  the  Jus  Naturale  implies  personal  freedom ;  for  all 
men  are  born  free  in  a  state  of  nature s.  But  the  Jus  Gentium  (the 
law  of  the  civilized  world)  admits  the  institution  of  Slavery.  In 
this  point,  therefore,  the  two  are  in  conflict,  and  the  Jus  Naturale 
presents  an  even  higher  ideal  of  society  than  the  Jus  Gentium.  The 
relation  between  the  three  types  of  Jus,  known  to  the  theory  of 
Roman  jurisprudence,  may  be  expressed  by  saying  that  the  Jus 
Civile  is  the  Right  of  man  as  a  member  of  a  state,  the  Jus  Gentium 
the  Right  of  the  free  man,  the  Jus  Naturale  the  Right  of  man  4. 

The  appeal  to  Nature  on  behalf  of  the  slave  is  an  index  of  the 
part  which  he  was  to  play  in  the  development  of  Roman  law. 
Roman  slavery  cannot  be  judged  solely  either  by  the  dismal  picture 

1  Arist.  Ehet,  i.  13.  a  Arist.  Eth.  v.  7. 

3  '  Cum  jure  natural!  omnes  liberi  nascerentur '  (Ulpian  in  Dig.  1.  1.  4). 

*  See  Muirhead,  Historical  Introduction  to  the  Private  Law  of  Rome,  p.  281 :  '  While 
the  jus  civile  studied  the  interests  only  of  citizens,  and  the  jus  gentium  those  of 
freemen  irrespective  of  nationality,  the  law  of  nature  had  theoretically  a  wider 
range  and  took  all  mankind  within  its  purview.'  Compare  Carlyle,  Mediaeval 
Political  Theory  in  the  West,  ch.  3  ('  The  Theory  of  the  Law  of  Nature '). 


THEORY  OF  THE  LAW  OF  NATURE        xxxvii 

presented  by  the  plantation  system,  or  by  the  legal  theory  that  the 
slave  was  a  mere  Thing  (Res),  a  chattel,  not  a  person.  We  must 
remember  that  the  slave,  often  of  an  intelligence  and  culture  superior 
to  those  of  his  master,  and  gifted  with  the  practical  genius  and  the 
capacity  for  detail  characteristic  of  the  Greek,  was  frequently  an 
active  man  of  business.  We  must  remember  too  that  the  very  fact 
that  he  was  a  chattel  might  be  employed  by  the  law  as  the  basis  for 
the  theory  that  he  was,  for  this  very  reason,  an  excellent  Instrument 
of  Acquisition.  So  essential  was  he  to  his  master  in  his  capacity  of 
agent  that  the  law  was  forced  to  recognize  that  he  could  be  a  party 
to  an  obligation.  The  obligation,  it  is  true,  could  not  be  called 
legal ;  it  was  only  natural  (Naturalis  obligatio) ! ;  but  still  it  was  an 
obligation  that  could  benefit  the  master,  without  making  that  master's 
condition  worse2.  It  was  necessary,  however,  to  protect  other 
parties  to  these  contracts  ;  and  the  Praetor  gradually  created  a  series 
of  quasi-liabilities  for  the  master  of  the  trading  slave.  Such  liabilities 
are  expressed  in  the  actions  Quod  Jussu,  Tributoria,  De  Peculio,  De 
in  Rem  Verso 3.  They  were  created  in  the  interest  of  the  master  as 
well  as  in  that  of  the  other  party  to  the  contract  ;  for  without  these 
guarantees  slave-agency  would  have  become  impossible.  In  the 
history  of  agency  the  slave  plays  a  distinguished  part ;  and  the  part 
that  he  plays  is  formally  justified  by  the  view  that  he  is  the 
possessor  of  Natural  Rights. 

§  14.    Interpretation  by  the  jurisconsults. 

All  these  new  influences  on  Roman  law,  although  they  found  their 
most  marked  expression  in  the  edicts  of  the  magistrates,  were  also 
absorbed  by  that  Professional  Jurisprudence  which  gives  us  the 
other  aspect  of  the  science  of  Interpretation.  It  may  have  been 
the  more  important  aspect ;  for  the  teaching  of  the  schools,  and  the 
advice  of  jurisconsults,  no  doubt  did  much  to  stimulate  and  guide 
the  activity  of  the  magistrates.  We  are  told  that  the  influence  of 
skilled  lawyers  was  for  a  very  long  time  represented  by  the  College 
of  Pontifices.  Even  after  the  publication  of  the  Twelve  Tables  and 
the  revelation  of  the  forms  of  Action  (448,  304  B.C.),  and  during  the 
period  when  secular  was  becoming  more  and  more  divorced  from 
religious  law,  the  knowledge  of  jurisprudence  was,  in  virtue  chiefly 
of  the  familiar  fact  that  professions  once  associated  are  not  easily 
separated,  exhibited  mainly  in  the  person  of  the  Pontifex  Maximus  ; 

1  Ulpian  in  Dig.  44.  7.  14  :  '  Servi  ...  ex  contractibus  .  .  .  civiliter  .  .  .  non 
obligantur  ;  sed  naturaliter  et  obligantur  et  obligant.' 

a  '  Melior  condicio  nostra  per  servos  fieri  potest,  deterior  fieri  non  potest ' 
(Gaius  in  Dig.  50.  17.  133). 

3  Gaius,  iv.  G9--74  ;  Justin.  Inst.  iv.  7. 


xxxviii  HISTORICAL  INTRODUCTION 

and  the  men  who  held  this  office  still  furnished  for  centuries  the 
leading  names  to  Roman  jurisprudence.  At  first  the  science  was 
imparted  with  an  air  of  mystery  ;  the  advice  was  occasional  and 
elicited  only  by  special  request.  But  finally  the  profession  of  law 
on  the  part  of  the  Pontiffs  became  more  open  and  more  systematic. 
The  first  of  these  who  taught  the  science  publicly  is  said  to  have 
been  Tiberius  Coruncanius  1  (circa  280  B.C.),  who  was  also  the  first 
plebeian  Pontifex  Maximus.  Lastly,  the  stage  of  written  com- 
mentaries was  reached.  These  commentaries  were  stimulated  by 
the  increasing  difficulty  of  interpreting  the  language  and  meaning 
of  the  Twelve  Tables.  The  earliest  commentator  on  this  code  who 
is  known  to  us,  was  Sextus  Aelius  Paetus,  consul  in  198  and  censor 
in  193  B.C.  He  busied  himself  with  the  interpretation  of  the  legal 
difficulties  connected  with  the  Tables,  and  published  a  work  called 
Tripertita,  which  gave  in  three  divisions  the  text  of  the  Tables,  an 
explanation  of  each  ordinance,  and  the  form  of  action  applicable  to 
the  cases  which  these  ordinances  raised 2.  His  later  contemporary, 
Acilius,  seems  also  to  have  been  a  legal  commentator s.  An  ex- 
planation of  the  obsolete  language  of  the  Tables  was,  so  far  as  we 
know,  first  attempted  by  the  great  philologist  Lucius  Aelius  Stilo 
Praeconinus,  who  was  born  about  154  B.C.*  One  of  the  results  of 
the  work  of  these  commentators  was  that  the  text  of  the  Tables,  as 
it  appeared  in  their  editions,  became  the  recognized,  and  in  fact  the 
only,  text  for  all  subsequent  ages  ;  for  it  seems  quite  clear  that  the 
later  commentators,  as  for  instance  Gaius,  had  no  knowledge  of  any 
antique  copy  of  the  Tables,  engraved  on  metal  and  posted  up  in 
some  public  place 6.  But  there  was  another  reason  why  a  knowledge 
of  the  Tables,  in  their  original  form,  was  becoming  decadent  even 
during  the  period  of  the  later  Eepublic.  The  Praetor's  Edict,  as 
a  living  source  of  law,  was  superseding  the  ancient  Code.  Juristic 
investigation  was  grappling  with  present  problems  and  did  not  care 
to  concern  itself  with  the  antique.  The  Tables  had  been  explained ; 
now  they  were  to  be  expanded.  But  the  expansion  came  with  the 
edict,  and  with  the  creative  jurisprudence  which  was  a  product  of 
the  new  Greek  culture  and  the  extension  of  the  Roman  Empire. 
The  founders  of  this  scientific  jurisprudence,  whose  labours  were  to 
be  perpetuated  by  the  lawyers  of  the  Principate,  were  Marcus  Junius 
Brutus,  Marcus6  Manilius  and  Publius  Mucius  Scaevola,  all  of  whom 

1  Pompon,  in  Dig.  1.  2.  2.  38. 

2  Pompon.  1.  c. ;  cf.  Cic.  de  Leg.  ii.  23.  59  ;  de  Or.  i.  56.  240  ;  Brut.  20.  78  ;  de  Rep. 
i.  18.  30. 

3  Cic.  de  Leg.  ii.  23. 59  ;  de  Amic.  2.  6.     He  is  called  Atilius  by  Pomponius  (I.  c.). 
See  Scholl,  Legis  duodecim  tabularum  reliquiae,  p.  25. 

4  Teuffel-Schwabe,  GeschicMe  der  rbmischen  Litteratur,  §  125 ;  SchOll,  op.  cit.  p.  26. 
s  Scholl,  op.  cit.  pp.  11,  15.  6  Sometimes  written  '  Manius.' 


JURISCONSULTS  OF  THE  REPUBLIC        xxxix 

flourished  about  the  middle  of  the  second  century  B.  c.  They  were 
followed  by  a  long  line  of  distinguished  successors  to  the  close  of 
the  Kepublic 1.  The  study  of  law  was  becoming  professional,  but  it 
was  not  confined  to  a  body  of  men  who  made  jurisprudence  the  sole 
business  of  their  lives 2.  The  knowledge  and  exposition  of  law  was 
an  incident  in  the  career  of  some  of  the  greatest  statesmen  of  the 
day.  It  may  have  been  their  ruling,  but  it  was  by  no  means  their 
sole  interest ;  and  sometimes  the  fruitful  experience  of  a  lifetime 
spent  in  an  active  forensic  and  political  career  was  given  to  admiring 
students  during  the  repose  which  marked  the  closing  years  of  the 
statesman's  life3.  The  rewards  of  the  profession  were  purely 
honorary ;  the  only  payment  was  repute,  gratitude,  or  political  sup- 
port ;  and  the  practical  utility  of  the  jurists  was  as  much  valued  as 
their  theoretical  knowledge.  They  pleaded  or  gave  advice  to  pleaders  ; 
they  gave  a  scientific  precision  to  the  formulae  of  legal  business ;  and 
they  returned  replies  (responsa)  to  the  questions  of  litigants,  magis- 
trates, or  judices  on  legal  points  which  arose  whether  before  or  in 
the  course  of  the  hearing  of  a  case  4.  It  was  through  these  replies, 
which  were  given  sometimes  in  private,  sometimes  in  the  Forum  5, 
that  the  jurisconsults  became  great  oral  and  literary  teachers.  The 
replies  were  sometimes  given  in  writing 6 ;  but,  even  when  verbal, 
were  often  collected  into  books ;  and  the  audience  which  received 
them  was  by  no  means  confined  to  those  who  were  primarily  in- 
terested in  the  answers.  The  young  were  admitted  to  the  consulta- 
tions 7,  and  the  consultation  often  closed  with  a  disputation 8.  This 
practice  led  eventually  to  systematic  teaching ;  disciples  attached 
themselves  to  a  particular  exponent  of  law,  who  gave  some  a  pre- 
liminary training  and  directed  others  in  a  course  of  study  that  was 
more  advanced 9.  In  no  respect  was  this  system  of  education  re- 
gulated by  the  State.  No  teacher  was  more  authentic  than  another. 

1  See  Roby,  Introduction  to  the  Study  of  Justinian's  Digest,  pp.  95-124. 

a  On  the  characteristics  of  the  study  of  law  during  this  period  see  Kriiger, 
Oeschichte  der  Quellen  und  Litteratur  des  romischen  Eechts,  pp.  48  foil. 

3  Cic.  de  Or.  i.  45.  199-200,  '  Quid  est  enim  praeclarius,  quam  honoribus  et  rei 
publicae  muneribus  perfunctum  senem  posse  suo  jure  dicere  idem,  quod  apud 
Ennium  dicat  ille  Pythius  Apollo,  se  esse  eum,  unde  sibi,  si  non  populi  et  reges, 
at  omnes  sui  cives  consilium  expetant  .  .  .  Est  enim  sine  dubio  domus  juris- 
consulti  totius  oraculum  civitatis.' 

*  These  three  functions  are  summed  up  by  Cicero  in  the  words  agere,  cavere, 
respondere.  See  Cic.  de  Or.  i.  48.  212  :  '  Sin  autem  quaereretur,  quisnam  juris- 
consultus  vere  nominaretur,  eum  dicerem,  qui  legum  et  consuetudinis  ejus,  qua 
pi'ivati  in  civitate  uterentur,  et  ad  respondendum  et  ad  agendum  et  ad  cavendum 
peritus  esset.'  Cf.  Kriiger,  op.  cit.  p.  49. 

5  Cic.  de  Or.  iii.  33.  133. 

6  Cic.  pro  Mur.  9.  19.     Cicero  here  describes  the  '  urbanam  militiam  respon- 
dendi,  scribendi,  cavendi.'      The  interpretation  that  I  have  given  to  scribere  is 
that  of  Kriiger,  op.  cit.  p.  50.     Cf.  Cic.  Top.  i.  1.  4. 

7  Cic.  Orator,  41.  142,  42.  143. 

'  Cic.  Top.  14,  56.  »  Kriiger,  op.  cit.  p.  51. 


3d  HISTORICAL  INTRODUCTION 

Controversy  grew  and  flourished1.  The  only  proof  of  the  validity 
of  an  opinion  was  its  acceptance  by  a  court.  But  even  this  was  but 
a  slender  proof;  for  different  Praetors  or  Judices  might  be  under  the 
sway  of  different  jurists.  It  required  a  single  superior  court  and  a 
single  controlling  authority  (both  of  which  were  found  in  the  Princi- 
pate)  to  guide  the  stream  of  legal  opinion  into  narrower  and  more 
certain  channels. 

Amidst  this  stream  of  interpretation  we  discern  one  attempt  to 
give  a  fixity  to  at  least  a  part  of  Eoman  law.  Ofilius,  a  Koman 
knight  of  the  period  of  Cicero  and  Caesar,  was  the  first  to  reduce 
the  Praetor's  Edict  to  some  kind  of  system2.  It  is  probable  that 
a  still  greater  work  of  revision  was  at  one  time  projected  for  this 
jurist ;  for  we  are  told  that  Caesar,  amidst  his  ambitious  schemes 
for  the  regeneration  of  the  Roman  world,  conceived  the  idea  of 
making  a  digest  of  the  Roman  law3.  Had  he  lived  to  carry  out 
this  scheme,  it  is  probable  that  Ofilius  would  have  been  entrusted 
with  the  work. 

§  15.   Reforms  in  Procedure  effected  during  the  later  period 
of  the  Republic. 

The  progress  effected  during  this  period  in  the  theory  of  law  was 
accompanied  by  a  great  reform  in  procedure.  From  about  150  B.  c. 
the  process  both  of  the  civil  and  criminal  courts  began  to  assume 
a  form  which  was  final  for  the  period  of  the  Republic,  and  which 
was  supplemented,  but  not  altered,  during  the  greater  part  of  the 
period  of  the  Principate  *.  In  the  domain  of  Civil  Procedure,  a  Lex 
Aebutia  gave  some  kind  of  formal  sanction  to  the  practice  by  which 
the  Praetor  tended  to  substitute  the  simpler  Formula  for  the  more 
complex  Legis  Actio 8.  The  Formula  had  perhaps  first  been  employed 
in  the  statement  of  cases  for  Peregrini.  Its  utility  commended  its 
use  for  cases  in  which  Roman  citizens  alone  were  involved.  The 
Praetor  Urbanus  employed  it  for  his  honorary  jurisdiction ;  it  was 
then  transferred  (doubtless  by  the  Lex  Aebutia)  to  the  civil  law  as 
an  alternative,  in  most  cases,  to  the  Legis  Actio.  We  cannot  say  in 

1  Cic.  de  Or.  i.  38.  173  ;  57.  241,  242  ;  pro  Mur.  12.  27 ;  13.  28. 

2  Pompon  in  Dig.  1.  2.  2.  44  :  '  De  jurisdictione  idem  (Ofilius)  edictum  praetoris 
primus  diligenter  composuit.' 

3  Suet.  JwZ.  44.  Ofilius'  intimacy  with  Caesar  is  noticed  by  Pomponius  (Dig.  I.  c.). 

4  The  civil  procedure  of  the  judicia  ordinaria  survived  the  Principate.     When 
the   criminal  procedure   of  the   quaestiones  perpetuae   disappeared  is  unknown. 
Their  disappearance  has  been  placed  as  early  as  the  close  of  the  first  century  A.  D. 
(Geib,  Criminalprocess,  pp.  392-397).     But  it  has  been  thought  that  Dio  Cassius 
(lii.  20,  21)  implies  their  existence  in  his  own  time,  at  the  beginning  of  the 
third  century  A.  D. 

4  Gaius,  iv.  30 ;  Gell.  xvi.  10.  8.  The  date  of  the  law  is  unknown,  but  is  not 
likely  to  be  earlier  than  150  B.  c.  Girard  (Manuel,  p.  987)  finds  indications  for 
placing  it  between  149  and  126  B.  c. 


REFORMS  IN  PROCEDURE  xli 

what  form  the  alternative  was  presented.  We  know  that  the 
law  must  have  exempted  certain  kinds  of  jurisdiction  from  the 
Formula — the  jurisdiction,  for  instance,  of  the  Centumviral  and 
Decemviral  courts.  But  it  may  have  allowed  the  Praetor  to 
substitute  the  one  procedure  for  the  other  in  most  spheres  of  civil 
jurisdiction ;  and,  where  the  Praetor  still  permitted  the  Legis  Actio 
and  the  Formula  to  stand  side  by  side  in  his  Album,  it  may  have 
given  the  litigants  a  choice  between  the  two.  The  two  methods  of 
procedure  still  exist  side  by  side  in  Cicero's  time  ;  but  the  formulary 
procedure  is  demonstrably  the  more  general  of  the  two. 

About  the  time  when  this  reform  was  being  effected,  an  attempt 
was  made  to  create  a  method  of  criminal  procedure,  simpler  and 
more  effective  than  that  of  a  trial  before  the  People.  The  type 
on  which  the  new  criminal  courts  were  constituted  was  furnished  in 
the  main  by  Civil  Procedure.  Cases  of  extortion  (Repetundarum), 
in  which  compensation  was  demanded  for  a  delict,  were  first  tried 
before  a  Praetor  and  Recuperatores.  This  was  a  mere  provisional 
arrangement  initiated  by  the  Senate  for  the  benefit  of  the  provincials l. 
But  the  system,  or  one  closely  modelled  on  it,  was  perpetuated  by 
the  Lex  Calpurnia  Repetundarum  of  1 49  B.  c. 2,  and  gradually  these 
recuperatorial  boards  grew  into  great  panels  of  Judices,  the  qualifica- 
tions for  the  jurors  being  specified  by  judiciary  laws  (Leges  Judi- 
ciariae).  Finally,  almost  the  whole  sphere  of  the  criminal  law  was 
embraced  by  a  series  of  enactments  which  created  standing  courts 
(Quaestiones  Perpetuae,  or  Judicia  Publica),  each  for  the  trial  of 
a  special  offence  or  a  group  of  related  crimes.  All  of  these  courts 
followed  the  same  model.  In  each  a  President  (Quaesitor),  who  was 
generally  a  Praetor,  sat  with  a  bench  of  Judices  who  pronounced 
a  penalty  fixed  by  the  law  which  had  constituted  the  court.  From 
the  judgment  of  these  Judices  there  was  no  appeal  to  the  People. 

§  16.    The  Creation  of  the  Principate — Changes  in  the 
Sources  of  Law. 

The  change  from  the  Republic  to  the  Principate  introduced  no 
very  sudden  alterations  in  the  sources  of  law  or  the  methods  of 
procedure.  Both,  as  we  shall  see,  were  supplemented  by  new 
creations ;  but  up  to  the  time  of  Gaius  it  was  possible  to  appeal  to 
the  Republican  system  as  the  one  that  underlay  the  legal  life  and 
the  judicial  organization  of  Rome3.  All  that  was  added  by  the 

1  Liv.  xliii.  2.  a  Cic.  Brut.  27.  106  ;  de  Off.  ii.  21.  75. 

3  Yet  it  is  to  be  observed  that  Gaius,  in  his  statement  of  the  sources  of  law 
(i.  2),  puts  those  which  were  antiquated  in  his  time  (Lex  and  Plebiscitum)  on 
the  same  level  as  those  which  were  living.  The  statement  is  juristically  correct, 
in  so  far  as  the  body  of  Koman  law  in  his  time  had  sprung  from  all  these 


xlii  HISTORICAL  INTRODUCTION 

Principate    was    in  the  nature   of  an  excrescence — one  that   was 
probably  healthy  in  its  effects,  in  spite  of  the  fact  that  it  does  seem 
to  have  limited  to  a  certain  extent  the  creative  activities  of  juristic 
thought.    The  birth  of  the  Principate  was  not  conditioned  by  strictly 
legal  necessities.    There  seems  to  have  been  little  sense  that  a  single 
controlling  force  was  needed  for  the  guidance  of  the  law  of  Rome, 
Italy,  and  the  provinces.     The  justification  for  the  Principate  was 
found  in  the  fact  that  a  single  controlling  power  was  necessary  for 
the  command  of  the  army  and  the  routine  administration  of  the 
provinces.     But  it  was  impossible  to  create  such  a  power  without 
bringing  it  into  some  contact  with  every  department  of  the  State. 
The  guidance  of  legislation  and  judicature  by  an  individual  will  was 
a  necessary  outcome  of  the  new  order  of  things ;  and  it  is  possible 
that  this  guidance  was  needed.     There  is  a  stage  in  the  history  of 
law  where  liberty  of  interpretation   may  lead   to  perplexing  un- 
certainty, and  there  is  a  stage  in  the  history  of  any  national  judicial 
organization  where  certain  radical  methods  are  necessary  to  adapt 
it  to  new  needs.     The  Principate  gave  a  definiteness  to  law,  but 
a  definiteness  that  was  in  no  sense  illiberal.     On  the  contrary,  it 
prevented   law   from   being   narrowly   Roman    as  effectually   as   it 
checked  it  from  recklessly  absorbing  foreign  elements.     It  adapted 
law  to  provincial  needs  by  expanding,  but  not  impairing,  its  national 
character.     At  the  same  time  it  widened  the  scope  of  jurisdiction  by 
methods  which  we  shall  soon  describe — methods  which  seem  to  have 
increased  the  efficiency  at  least  of  the  civil  courts  at  Rome,  and 
which  brought  the  provincial  world  into   closer  judicial  relations 
with  the  capital.     The  changes  effected  both  in  legislation  and  in 
jurisdiction  were  gradual  and  progressive ;   and,  though  they  were 
from  a  formal  point  of  view  initiated  by  the  will   of  individual 
monarchs,  it  is  important  to  remember  that,  at  Rome  as  elsewhere, 
monarchical   power   is   the   outcome   of  the  concurrence   of  many 
individual  wills.     For  the  sake  of  convenience  we  are  accustomed 
to   treat   the   Princeps  as   the   chief  source  of  law  and  the  chief 
influence  on  jurisdiction.     Sometimes  a  purely  personal  power  of 
this  type  may  have  been  realized  for  a  while,  although  when  so 
realized  it  always  had  a  flavour  of  tyranny1.     But  as  a  rule,  when 
we  think  of  the  Princeps  as  a  source  of  law  and  justice,  we  should 
be  thinking  of  his  judicial  advisers   and   assessors.      The  trained 

sources ;  but  the  method  of  statement  is  likely  to  convey  a  false  historical 
implication.     Cf.  pp.  xlv-xlviii. 

1  We  may  instance  the  view  of  Caligula  on  the  jus  respondendi  of  the  juris- 
consults. Suetonius  says  (Calig.  34)  '  De  juris  quoque  consultis,  quasi  scientiae 
eorum  omnem  usum  aboliturus,  saepe  jactavit  "  se  mehercule  effectxirum  ne 
quid  respondere  possint  praeter  eum."'  This  was  a  desire  that  found  no 
fulfilment  during  the  Principate. 


THE  PRINCIPATE  xliii 

jurist  still  plays  a  leading  part  in  legal  progress.  His  control  of 
the  Princeps,  and  the  Princeps'  control  of  him,  must  both  be  taken 
into  account,  although  the  actual  extent  of  the  respective  influences — 
of  the  administrator  over  the  jurist  and  of  the  jurist  over  the  adminis- 
trator— can  never  be  determined  for  any  given  act  or  for  any  given 
moment  of  time. 

A  division  of  power  of  this  type  is  perhaps  common  to  all 
monarchies.  But  in  the  Roman  Principate,  which  was  not  tech- 
nically a  monarchy,  we  find  it  expressed  in  yet  another  way — a  way 
which  is  of  more  importance  theoretically,  although  perhaps  of  less 
practical  import.  It  is  expressed  in  the  form  that  the  Princeps  is 
merely  the  '  extraordinary  magistrate '  of  a  Republican  Constitution. 
By  an  '  extraordinary  magistracy '  is  meant  a  magistracy  formed  by 
an  accumulation  of  functions,  each  of  which  is  usually  exercised  by 
a  particular  magistrate.  The  chief  powers  with  which  the  Princeps 
was  invested  were  the  Proconsulare  Imperium  conferred  by  the 
Senate,  and  the  Tribunicia  Potestas  conferred  on  a  recommendation 
of  the  Senate  in  a  formal  meeting  of  the  People.  The  Proconsulare 
Imperium  was  technically  valid  only  outside  the  limits  of  Italy  ;  but, 
as  it  was  absolutely  necessary  that  the  Princeps  should  possess 
Imperium  within  Rome,  he  was  specially  exempted  from  losing  his 
Imperium  by  his  presence  within  the  city.  The  effect  of  this 
exemption  probably  was  to  create  for  the  Princeps  a  kind  of  consular 
Imperium  in  Rome  and  Italy.  But  even  this  device  was  not  sufficient 
to  secure  for  him  the  authority  which  he  required  as  a  moderator  of 
the  whole  State.  The  Proconsulare  Imperium  and  the  Tribunicia 
Potestas  required  to  be  supplemented  by  a  number  of  separate  powers 
.conferred  by  special  grants.  These  grants  must  originally  have  been 
made  by  special  laws  and  decrees  of  the  Senate  that  were  passed  at 
various  times ;  but  the  practice  seems  soon  to  have  been  adopted  of 
embodying  them  in  a  single  enactment,  which  was  submitted  to  the 
formal  assent  of  the  People  at  the  time  when  the  Proconsulare 
Imperium  and  the  Tribunicia  Potestas  were  conferred.  A  fragment 
of  such  an  enactment  is  the  extant  Lex  or  Senatusconsultum  which 
enumerates  powers  conferred  on  the  Emperor  Vespasian  at  his 
accession1.  The  rights  of  the  Princeps  enumerated  in  this  document 
are  of  a  very  heterogeneous  kind — they  include  the  powers  of  making 
treaties,  extending  the  pomerium  of  the  city,  commending  candidates 

1  The  document  is  to  be  found  in  the  Corpus  Inscriptionum  Latinarum,  vi. 
n.  930,  and  in  Bruns,  Fontes  Juris  Romani  Antiqui,  v.  19.  It  describes  itself  as 
a  law  (1.  34  'Si  quis  hujusce  legis  ergo,'  &c. ),  and  is  generally  known  as  the 
Lex  de  imperio  Vespasiani.  But  its  wording  bears  more  analogy  to  that  of 
a  Senatusconsultum.  It  seems  to  be  a  decree  of  the  Senate  which  is  intended 
to  be  submitted  to  the  People  for  their  formal  assent.  See  Mommsen,  Staatsr.  ii, 
p.  878. 

da 


xliv  HISTORICAL  INTRODUCTION 

for  office,  and  issuing  edicts  as  interpretations  of  law,  human  and 
divine  ;  and,  important  as  they  are,  they  have  no  direct  connexion 
with  either  the  Proconsulare  Imperium  or  the  Tribunicia  Potestas. 
Some  of  the  most  imposing  powers  of  the  Princeps  were  dependent 
on  neither  of  these  two  sources,  but  were  contained  only  in  this 
general  Lex  ;  and,  as  fresh  prerogatives  were  added  to  the  Principate, 
the  Lex  would  grow  in  bulk  and  importance.  Some  development  of 
this  kind  may  account  for  the  fact  that  Gaius  and  Ulpian  both  speak 
of  the  Princeps  receiving  his  Imperium  through  a  Lex  \  Such  an 
expression  could  not  have  been  used  of  the  early  Principes  ;  for  the 
Proconsulare  Imperium  was  received  through  a  decree  of  the  Senate  ; 
but  it  is  possible  that  in  the  course  of  time  the  general  Lex,  as 
enumerating  the  majority  of  the  prerogatives  of  the  Princeps,  came 
to  overshadow  the  other  sources  of  his  authority. 

Since  the  authority  of  the  Princeps  was  built  up  in  this  gradual 
and  unsystematic  way,  it  is  quite  impossible  for  the  modern  inquirer 
to  determine  with  precision  the  sources  of  the  exercise  of  his  different 
powers.  But  a  rough  estimate  may  be  made  of  five  distinct  kinds 
of  prerogative  and  of  the  activities  flowing  from  each.  (1)  With  the 
Imperium  were  connected  the  control  of  the  army  and  the  provinces, 
the  right  of  declaring  war  and  of  making  treaties,  the  power  of 
conferring  Roman  citizenship  or  Latin  rights,  civil  and  criminal 
jurisdiction,  and  the  general  power  of  legal  interpretation.  (2)  The 
Tribunician  Power,  besides  making  the  Princeps  sacrosanct,  gave 
him  the  right,  exercised  during  the  earlier  period  of  the  Principate 
but  afterwards  neglected,  of  initiating  measures  in  the  Assembly  of 
the  Plebs,  and  also  the  right  of  transacting  business  with  the  Senate, 
although  this  second  right  was  extended  by  special  grants.  The 
power  of  veto,  inherent  in  the  Tribunicia  Potestas,  gave  the  Princeps 
a  control  over  all  the  other  magistrates  of  the  State,  enabled  him  to 
exercise  over  the  jurisdiction  of  the  Senate  a  power  akin  to  that  of 
pardon,  and  probably  formed  the  basis  of  much  of  his  appellate 
jurisdiction.  (3)  Two  of  the  Principes,  Claudius  and  Vespasian, 
were  invested  with  the  temporary  office  of  censor,  and  Domitian 
declared  himself  censor  for  life.  His  example  was  not  followed  by 
succeeding  rulers  ;  but  the  most  important  of  the  functions  of  the 
censors — the  revision  of  the  lists  of  Senators  and  Knights — continued 
to  be  a  part  of  the  admitted  prerogatives  of  the  Princeps.  Akin  to 
this  right  was  that  of  creating  Patricians,  which  had  been  conferred 

1  Gaius,  i.  5;  Ulpian  in  Dig.  1.  4.  1:  'Quod  principi  placuit,  legis  habet 
vigorem  ;  utpote  cum.  lege  regia,  quae  de  iinperio  ejus  lata  est,  populus  ei  et  in 
eum  omne  suum  imperium  et  potestatem  conferat.'  It  has  been  questioned 
whether  the  expression  lex  regia  was  in  vogue  even  in  the  time  of  Ulpian,  and  it 
may  be  an  interpolation.  The  expression  is  found  in  Justinian  (Cod.  1. 17.  1. 7). 
See  Mommsen,  Staatsr.  ii,  pp.  876,  877. 


LEGISLATION  DURING  THE  PRINCIPATE       xlv 

by  law  on  Caesar  and  Augustus,  had  been  exercised  by  Claudius  and 
Vespasian  as  censors,  and  finally  became  a  right  inherent  in  the 
Principate  itself.  (4)  The  Princeps,  besides  being  a  member  of  all 
the  great  religious  colleges,  was,  as  Pontifex  Maximus,  the  official 
head  of  the  state-religion,  and  was  invested  by  law  with  the  power  of 
executing  ordinances  which  were  to  the  interest  of  the  religious  life 
of  the  community  1.  (5)  Supplementary  powers,  which  cannot  be 
described  by  a  common  name  or  connected  with  any  definite  office, 
were  granted  to  the  Princeps.  Some  of  these  were  means  by  which 
his  control  over  the  magistrates  and  the  Senate  was  increased.  Such 
were  the  rights  of  securing  the  election  of  certain  candidates  for 
office  by  means  of  a  recommendation  (Commendatio),  and  of  exercising 
powers  in  relation  to  the  Senate  superior  to  those  possessed  by  the 
other  magistrates. 

An  authority  thus  endowed  could  not  fail  to  exercise  a  strong 
directing  influence  on  the  sources  of  law  and  the  methods  of 
procedure.  The  influence  asserted  itself  from  the  first ;  yet  for  at 
least  two  centuries  there  was  always  a  formal,  and  sometimes  a  real 
recognition  of  the  theory  on  which  the  Principate  was  based — the 
theory  of  a  dual  control  exercised  by  the  Princeps  on  the  one  hand, 
by  the  usual  organs  of  the  Kepublic  on  the  other.  The  chief  organ 
by  which  the  Kepublic  was  represented  was  now  no  longer  the 
People,  but  the  Senate  ;  and  the  dual  sovereignty — or  '  Dyarchy,' 
as  it  has  been  called — can  be  illustrated  chiefly  by  the  division  of 
authority  between  the  Princeps  and  the  Senate. 

As  regards  the  sources  of  law,  even  the  utterances  of  the  People 
were  for  some  time  elicited.  Leges  and  Plebiscita — specimens  of 
which  are  to  be  found  in  the  Leges  Juliae  of  Augustus,  the  Lex 
Aelia  Sentia  belonging  to  the  reign  of  the  same  monarch,  the  Lex 
Junia  Norbana  of  the  reign  of  Tiberius,  the  Leges  Claudiae  of  the 
Emperor  Claudius  —  continued  to  be  passed  during  the  early 
Principate.  The  last  trace  of  legislation  belongs  to  the  reign  of 
Nerva  (96-98  A.D.)2. 

Even  before  legislative  power  had  been  surrendered  by  the  Comitia, 
it  had  begun  to  pass  to  the  Senate  ;  and  down  to  the  third  century 
A.D.,  such  general  ordinances  as  tended  to  alter  the  fundamental 
legal  relations  of  Eoman  citizens  to  one  another  were  generally 
expressed  in  the  form  of  Senatusconsulta.  The  Senatusconsultum 
was  a  true  source  of  the  Jus  Civile.  Yet  it  did  not  attain  the  formal 
structure,  or  always  adopt  the  imperative  utterance,  of  a  law.  Its 
utterances  are  often  couched  in  an  advisory  form3,  as  though  the 

1  Lex  de  Imp.  Vesp.  1.  17. 

2  Dig.  47.  21.  3.  1. 

3  Thus  the  S.  C.  Vdkianum  begins  :  '  Quod  Marcus  Silanus  et  Velleus  Tutor 


xlvi  HISTORICAL  INTRODUCTION 

Senate  of  this  period,  like  that  of  the  Kepublic,  were  merely  giving 
counsel  to  a  magistrate.  Gaius  attributes  to  these  decrees  'the 
binding  force  of  law '  ;  and  it  does  not  seem  that  the  early  doubts 
as  to  whether  the  Senate  could  pass  ordinances  immediately  binding 
on  the  community l  survived  the  beginning  of  the  Principate. 

The  Praetor's  edict  still  continued  to  be  issued  ;  nor  are  we  told 
that  the  edictal  power  was  in  any  way  infringed  during  the  early 
Principate.  But  there  are  two  considerations  which  would  lead  us 
to  conclude  that  it  was  seriously  weakened.  The  first  is  based  on 
the  fact  that  edictal  power  in  the  highest  degree  was  conferred  by 
law  on  the  Princeps  himself 2 ;  and  the  existence  of  two  interpreters 
of  the  civil  law  possessing  equal  authority  is  almost  inconceivable. 
The  second  consideration  rests  on  the  probability  that  the  Praetor's 
rulings  in  detail  were  subject  to  the  veto  of  the  Princeps.  A  new 
ruling  was  often  the  basis  for  a  new  formula  and  a  new  edict,  and 
if  the  first  of  these  was  inhibited,  its  successive  developments  could 
not  be  realized.  Progressive  legislation  was  effected  elsewhere,  in 
decrees  of  the  Senate  and  in  the  imperial  constitutions  ;  and  the 
final  sign  that  the  creative  work  of  the  Praetors  was  a  thing  of  the 
past  was  given  when,  in  the  reign  of  Hadrian  (117-138  A.D.),  and 
therefore  probably  in  the  lifetime  of  Gaius,  the  work  which  Ofilius 
had  begun s  was  perfected  by  the  jurist  Salvius  Julianus.  He 
reduced  the  edict  to  a  fixed  and  definite  system 4 ;  and  from  this 
time  onward  the  Edictum  Perpetuum  was,  in  its  essential  features, 
unalterable.  Absolute  validity  was  given  to  the  new  redaction 
by  a  Senatusconsultum  introduced  by  a  speech  from  the  Emperor 
Hadrian,  who  declared  that  any  new  point,  not  contemplated  in 
the  edict,  should  be  decided  by  analogy  with  it6.  It  is  probable 
that  such  new  points  were  still  mentioned  in  successive  edicts ;  for 
it  is  certain  that  the  edict  still  continued  to  be  issued  annually. 
The  work  of  Julian  could,  therefore,  never  have  been  meant  to  be 
unalterable  in  a  literal  sense.  Such  invariability  would  indeed  have 
been  impossible  ;  for,  though  changes  in  law  were  now  beginning  to 
be  made  chiefly  by  ordinances  of  the  emperor,  yet  these  very  changes 
would  neeer  jitate  corresponding  changes  in  the  details  of  the  edict. 

consules  verba  fecerunt .  .  .  quid  de  ea  re  fieri  oportet,  de  ea  re  ita  censuere.' 
See  Kriiger,  op.  cit.  p.  82. 

1  Gpjius,  i.  4.     Cf.  Ulpian  in  Dig.  1.  3.  9  '  Non  ambigitur  senatum  jus  facere 
posse.      Papinian  (Dig.  1.  1.  7)  recognizes  senatusconsulta  as  a  source  of  jus. 

2  Lex  de  Imp.  Vesp.  1.  17 '  Utique  quaecunque  ex  usu  rei  publicae  .  .  .  censebit, 
ei  agere  facere  jus  potestasque  sit.' 

3  P.  xl. 

4  Victor,   Caes.  19  '  Primus  edictum  quod  varie  inconditeque  a  praetoribus 
promebatur   in   ordinem   composuit.'     Eutrop.  viii.   17  '  Perpetuum  conposuit 
edictum.' 

8  Cod.  1.  17.  2.  18  ;  Constitution  At'Scwcw  (prefixed  to  Digest),  18. 


THE  PKINCEPS  AS  A  SOURCE  OF  LAW      xlvii 

The  fixity  of  Julian's  edict  was  to  be  found  both  in  its  structure  and 
in  its  leading  principles ;  in  the  order  in  which  the  rules  of  law 
were  marshalled  and  in  the  general  significance  of  these  rules.  It 
has  been  supposed  that  Julian's  work  was  not  confined  to  the  edict 
of  the  Praetor  Urbanus,  but  that  he  dealt  also  with  the  edicts  of  the 
Praetor  Peregrinus  and  of  the  Curule  Aediles J.  He  may  have 
treated  these  edicts  separately ;  but  the  three  may  have  been 
combined  in  a  single  comprehensive  work  which  was  spoken  of  as 
'The  Edict2.' 

By  the  side  of  these  sources  of  law  which  survived  from  the 
Kepubtic  stood  the  new  authority,  the  Princeps.  He  was  not 
regarded  as,  in  the  strict  sense,  a  legislative  authority ;  but  he  or  his 
advisers  exercised  a  profound  influence  on  the  growth  and  structure 
of  law  in  virtue  of  his  power  of  issuing  Edicts,  Decrees,  Eescripts,  and 
Mandates.  The  Edictum  of  the  Princeps  was,  like  that  of  the 
Praetor  in  the  Kepublic,  technically  an  interpretation  of  law,  but,  like 
the  Praetor,  the  Princeps  could  supplement  and  alter  under  the  guise 
of  interpretation  :  and  his  creative  power,  as  exercised  by  his  edictal 
authority,  was  very  great.  An  edict  of  an  emperor  did  not  necessarily 
bind  his  successors ;  but,  if  it  had  been  accepted  as  valid  by  a  series 
of  emperors,  it  was  considered  to  be  a  part  of  the  law,  and  its 
subsequent  abandonment  had  apparently  to  be  specified  by  some 
definite  act  of  repudiation 3.  The  Decretum  was  a  judgment  of  the 
Princeps  as  a  court  of  justice ;  and,  unless  it  was  rescinded  in  a 
succeeding  reign,  its  validity  as  a  precedent  seems  to  have  been 
unquestioned.  The  Rescriptum  was  technically  an  answer  to  a  letter 
by  which  the  advice  of  the  Princeps  was  sought ;  but  the  word  soon 
came  to  be  used  for  the  Princeps'  letter  (Epistola)  itself.  It  contained 
instructions  either  on  administrative  or  on  judicial  matters.  In  its 
first  capacity,  it  was  addressed  to  some  public  official  subordinate  to 
the  emperor ;  in  its  second,  it  was  addressed  either  to  the  judge  or  to 
the  litigant.  It  was  elicited  either  as  an  answer  to  the  consultation 
(Consultatio)  of  an  official  or  a  judge  who  hesitated  as  to  his  course  of 
procedure,  or  as  a  reply  to  a  petition  (Libellus,  Supplicatio)  of  one  of 
the  parties  to  a  suit.  The  Rescript  which  dealt  ^ith  judicial 
matters  might  settle  a  doubtful  point  of  law  by  showing,  or  extending, 
the  application  of  an  existing  principle  to  a  new  case.  The  Rescript 
was  the  most  powerful  instrument  of  law-making  wielded  by  the 
Princeps.  The  definiteness  of  its  form  gave  the  opinion  an  authority 

1  We  hear  of  the  Edictum  Aedilium  in  the  Constitutions  '  Omnem '  (4)  and 
AeSwKev  (5)  prefixed  to  the  Digest. 

2  It  is  possible  that  the  common  elements  in  the  provincial  edicts  were 
reduced  to  a  system  at  this  time.     Cf.  p.  xxxiii. 

3  Paulus  (Dig.  28.  2.  26)  uses  the  expression  '  Jam  sublato  edicto  divi  August!,' 
a  phrase  which  suggests  something  more  than  mere  neglect. 


xlviii  HISTORICAL  INTRODUCTION 

which,  once  accepted  by  a  successor,  could  not  easily  be  questioned  ; 
while  the  immense  area  over  which  these  letters  of  advice  were  sent 
kept  the  Princeps  in  touch  with  the  whole  provincial  world,  and 
caused  him  to  be  regarded  by  the  provincials  as  the  greatest  and 
most  authentic  interpreter  of  law.  The  Edicts,  Decrees,  and  Rescripts 
came  to  be  described  by  the  collective  name  of  '  Imperial  Consti- 
tutions '  (Constitutiones  Principum),  and  by  the  time  of  Gaius  they 
were  held  to  possess,  in  a  uniform  degree,  'the  binding  force  of 
law1.'  On  a  lower  level,  with  respect  to  legal  validity,  stood  the 
Mandatum.  This  was  a  general  instruction  given  to  subordinate 
officials,  for  the  most  part  to  governors  of  provinces,  and  dealt 
usually  with  administrative  matters,  although  sometimes  it  had 
reference  to  a  point  of  law.  Such  mandates  might  be,  and  often 
were,  withdrawn  by  the  Princeps  who  had  issued  them,  or  by  his 
successor.  Hence  it  was  impossible  to  attach  perpetual  validity  to 
their  terms.  But,  when  a  mandate  dealt  with  a  precise  point  of  law, 
and  was  renewed  by  successive  emperors,  it  must  have  acquired  the 
force  of  a  Rescript 2. 


§17.    Changes  in  Procedure  under  the  Principate. 

The  creation  of  the  office  of  Princeps,  and  the  extension  of  the 
authority  of  the  Senate,  exercised  an  influence  on  jurisdiction  as 
well  as  on  legislation.  The  two  new  features  of  the  judicial  system 
were  the  growth  of  extraordinary  jurisdiction  and  the  growth  of 
Courts  of  Appeal.  The  name  'extraordinary'  (extra  ordinem)  was 
given  to  all  jurisdiction  other  than  that  of  the  ordinary  civil*  and 
criminal  courts  (Judicia  Ordinaria)  which  had  survived  the  Republic. 
It  often  dealt  with  eases  not  fully  provided  for  by  these  courts  ;  and 
its  chief  characteristic  was  that  the  cognizance  (Cognitio),  both  on  the 
question  of  law  and  on  the  question  of  fact,  was  undertaken  solely  by 
the  magistrate  or  by  a  delegate  nominated  by  him  (judex  extra 
ordinem  datus)3.  In  civil  matters,  the  Princeps  sat  as  such  an 
extraordinary  court,  and  either  exercised,  or  delegated,  jurisdiction 
in  matters  such  as  Trust  or  Guardianship.  He  might  take  other 

1  Gaius,  i.  5.  Cf.  Ulpian  in  Dig.  1.  4.  1.  1  '  Quodcumque  .  .  .  imperator  per 
epistulam  et  subscriptionem  statuit  vel  cognoscens  decrevit  .  .  .  vel  edicto 
praecepit,  legein  esse  constat.  Haec  sunt  quas  vulgo  constitutiones  appellamus.' 

a  Thus  the  soldier's  testament  was  created  by  a  series  of  mandates  (Dig. 
29.  1.  1). 

3  Such  a  delegate  might  be  given  by  the  consuls  when  exercising  extraordinary 
jurisdiction  (Gell.  xii.  13.  1  '  Cum  Romae  a  consulibus  judex  extra  ordinem 
datus  pronuntiare  .  .  .  jussus  essem ').  .Such  a  judex  represented  the  magistrate 
more  fully  than  the  judex  of  ordinary  jurisdiction.  He  was  not  tied  down 
within  the  limits  of  a  formula. 


NEW  METHODS  OF  PROCEDUEE  xlix 

cases,  if  he  willed  ;  but  his  jurisdiction  was  always  voluntary  ;  and, 
if  he  declined  to  act,  the  case  went  before  the  Praetor.  In  criminal 
matters,  two  high  courts  of  voluntary  and  extraordinary  jurisdiction 
were  created — that  of  the  Princeps  and  that  of  the  Senate.  The 
Princeps  might  take  any  case,  but  often  limited  his  intervention  to 
crimes  committed  by  imperial  servants  or  by  officers  of  the  army. 
The  jurisdiction  of  the  Senate  was  especially  concerned  with  offences 
committed  by  members  of  the  upper  ranks  of  society,  or  with 
crimes  of  a  definitely  political  character. 

The  system  of  appeal  introduced  by  the  Principate  was  of  a 
complicated  character,  and  many  of  its  features  are  imperfectly 
understood.  It  seems  that,  at  Kome,  the  Princeps  could  in  civil 
matters  veto,  and  perhaps  alter,  the  decision  of  a  Praetor,  but  could 
not  annul  the  verdict  of  a  Judex,  except  by  ordering  a  new  trial l. 
He  could  of  course  vary  the  decisions  of  his  own  delegates  in  matters 
of  extraordinary  jurisdiction.  In  criminal  matters  the  Princeps 
does  not  seem  to  have  had  the  power  of  altering  the  decisions  of  the 
Quaestiones  Perpetuae ;  but  he  could  probably  order  a  new  trial 2. 
There  was  technically  no  right  of  appeal  from  the  Senate  to  the 
Princeps 3 ;  but  the  Princeps  could  exercise  what  was  practically  a 
power  of  pardon  by  vetoing  the  decisions  of  the  Senate  in  virtue  of 
his  Tribunicia  Potestas.  In  the  provincial  world,  the  right  of 
appeal  was  at  first  regulated  in  accordance  with  the  distinction 
between  Caesar's  provinces  and  the  provinces  of  the  Roman  people. 
From  Caesar's  provinces  the  appeal  lay  to  Caesar ;  from  the  other 
provinces  it  came  to  the  Consuls  and,  at  least  if  it  was  concerned 
with  a  criminal  matter,  was  by  them  transmitted  to  the  Senate. 
But  we  know  that  this  system  of  dual  jurisdiction  was  breaking 
down  even  in  the  first  century  of  the  Principate,  and  that  the 
appellate  jurisdiction  of  the  Princeps  was  tending  to  encroach  on 
that  of  the  Consuls  and  Senate  4.  The  extent  to  which  it  had  broken 
down  in  the  time  of  Gaius  is  unknown.  But  we  know  that,  by  the 
end  of  the  second  century  A.  D.,  the  Princeps  was  the  Court  of 
Appeal  for  the  whole  provincial  world.  For  this  purpose  he  was 
usually  represented  by  the  Prefect  of  the  Praetorian  Guard. 

1  This  was  done  by  the  fiction  of  In  integrum  restitutio.     Cf.  Suet.  Claud.  14 
'  (Claudius)  iis,  qui  apud  privates  judices  plus  petendo   formula  excidissent, 
restituit  actiones.' 

2  The  Emperor  Gordian  is  spoken  of  as  -naKivZiKiav  StSovs  rots  aS'ttcajs  KaraKpiOtiai 
(Herodian,  vii.  6.  4). 

3  Ulpian  in  Dig.  49.  2.  1.  2  '  Sciendum   est   appellari  a  senatu  non  posse 
principem,  idque  oratione  divi  Hadriani  effectum.'     There  can  be  little  doubt 
that  the  principle  was  confirmed,  not  created,  by  Hadrian. 

*  Nero  at  the  beginning  of  his  reign  in  54  A.  D.  professed  a  desire  to  restore 
the  original  principle  (Tac.  Ann.  xiii.  4  '  Teneret  antiqua  munia  senatus, 
consulum  tribunalibus  Italia  et  publicae  provinciae  adsisterent '). 


1  HISTORICAL  INTRODUCTION 

§  18.   The  work  of  the  Jurisconsults  under  the  Principate. 

The  official  organs  which  made  Roman  law  were  now,  as  under 
the  Republic,  assisted  by  the  unofficial  or  semi-official  activity  of  the 
jurisconsults.  Some  of  these  teachers  were  now  given  public  recog- 
nition as  authoritative  sources  of  law.  We  are  told  that  Augustus 
granted  the  right  to  certain  jurisconsults  to  respond  under  imperial 
authority ;  and  this  practice  was  continued  by  his  successors  on  the 
throne.  Amongst  the  earlier  of  these  patented  jurisconsults  was 
Masurius  Sabinus,  of  the  time  of  the  Emperor  Tiberius  '.  The 
granting  of  this  privilege  did  not  diminish  the  activity  of  the 
unpatented  lawyers2,  although  it  doubtless  diminished  their  in- 
fluence ;  but  it  gave  the  response  of  its  possessor  as  authoritative 
a  character  as  though  it  had  proceeded  from  the  emperor  himself3. 
The  response  was  usually  elicited  by  a  party  to  the  suit  and  presented 
to  the  Judex  4.  He  was  bound  by  the  decision c ;  but  naturally  only 
on  the  assumption  that  the  facts  as  stated  in  the  petition  which 
elicited  the  Rescript  were  the  facts  as  exhibited  in  the  course  of  the 
trial 6.  It  may  have  been  understood  that  the  opinion  of  only  one 
patented  counsellor  was  to  be  sought  in  any  single  case  ;  for  in  the 
early  Principate  there  seems  to  have  been  no  provision  determining 
the  conduct  of  a  Judex  when  the  opinions  of  his  advisers  differed. 
Later  it  must  have  been  possible  to  elicit  the  opinion  of  several 
patented  jurists  on  a  single  issue  ;  for  the  Emperor  Hadrian  framed 
the  rule  that,  in  the  case  of  conflicting  responses,  a  Judex  should  be 
entitled  to  use  his  own  discretion 7. 

§  19.    Literary  activity  in  the  domain  of.  Law  to  the 
time  of  Gaius. 

The  literary  activity  in  the  domain  of  law,  during  the  period 
which  intervened  between  the  accession  of  Augustus  and  the  time 
of  Gaius,  was  of  the  most  varied  character8.  Religious  law  (Jus 

1  Pomponius  in  the  Digest  (1.  2.  48-50)  says  'Massurius  Sabinus  (of  the  time 
of  Tiberius)  in  equestri  ordine  fuit  et  publice  primus  respondit ';  but  he  also  adds  : 
'  Primus  divus  Augustus,  ut  major  juris  auctoritas  haberetur,  constituit,  ut  ex 
auctoritate    ejus   responderent.'     To   make   the    statements   square    with    one 
another,  Mommsen  would  strike  out  the  words  'fuit  et'  in  the  first  paragraph, 
as  being  the  addition  of  an  interpolator.     The  statement  would  then  be  that 
Sabinus  was  the  first  patented  jurisconsult  of  equestrian  rank. 

2  This  seems  shown  by  the  story  told  by  Pomponius  in  Dig.  1.  2.  2.  49. 

3  Yet  the  response  was  not  regarded  as  a  delegation  of  the  power  of  the 
Princeps  to  issue  Rescripts.     It  may,  however,  have  formed  the  model  for  the 
judicial  Rescript.     See  Krxiger,  op.  cit.  p.  110,  note  5. 

4  Not  merely  to  the  Judex  privatus,  but  to  the  Judex  extra  ordinem  datus,  and 
even  to  the  magistrate  who  was  judging. 

5  Justin.  Inst.  i.  2.  8.  6  Kriiger.  op.  cit.  p.  110.  7  Gaius,  i.  7. 

8  For  a  detailed  description  of  this  literature  see  Roby,  Introduction  to  the  Study 
of  Justinian's  Digest,  pp.  124-174. 


THE  INSTITUTES  OF  GAIUS  li 

Pontificium)  attracted  the  attention  of  Capito.  Labeo  wrote  on  the 
Twelve  Tables.  The  Praetor's  Edict  was  the  subject  of  studies  by 
Labeo,  Masurius  Sabinus,  Pedius  and  Pomponius.  The  Edict  of  the 
Curule  Aediles  was  commented  on  by  Caelius  Sabinus.  Salvius 
Julianus,  besides  his  redaction  of  the  Edicts1,  produced  a  work 
known  as  Digesta,  which  perhaps  assumed  the  form  of  detailed 
explanations  of  points  of  law  systematically  arranged.  Compre- 
hensive works  on  the  Civil  Law  were  furnished  by  Masurius  Sabinus 
and  Caius  Cassius  Longinus.  Other  jurists  produced  monographs  on 
special  branches  of  law,  as  the  younger  Nerva  on  Usucapion,  Pedius 
on  Stipulations,  Pomponius  on  Fideicommissa.  Some  lawyers  wrote 
commentaries  on  the  works  of  their  predecessors.  It  was  thus  that 
Aristo  dealt  with  Labeo,  and  Pomponius  with  Sabinus.  Other 
works  took  the  form  of  Epistolae,  which  furnished  opinions  on 
special  cases  which  had  been  submitted  to  their  author,  and 
collections  of  Problems  (Quaestiones).  Nor  was  history  neglected. 
There  must  have  been  much  of  it  in  Labeo's  commentary  on  the 
Twelve  Tables ;  and  Pomponius  wrote  a  Handbook  (Enchiridion), 
which  contained  a  sketch  of  the  legal  history  of  Eome  from  the 
earliest  times. 

§  20.   The  Institutes  of  Gains ;  their  place  in  the  Literature 

of  Law. 

The  Institutes  of  Gaius  are  a  product  of  this  activity ;  for  it  is 
necessary  that  a  great  deal  of  detailed  and  special  work  shall  be 
done  in  a  science  before  a  good  handbook  on  the  subject  can  be 
written  for  the  use  of  students.  The  name  of  Gaius's  work  does 
not  appear  in  the  manuscript ;  '  but 2  from  the  proem  to  Justinian's 
Institutes  appears  to  have  been  INSTITUTIONS,  or  to  distinguish  it 
from  the  systems  of  rhetoric  which  also  bore  this  name,  INSTITU- 
TIONES JURIS  CIVILIS.  From  the  way  in  which  it  is  mentioned  by 
Justinian,  we  may  infer  that  for  350  years  the  elite  of  the  youth  of 
Eome  were  initiated  in  the  mysteries  of  jurisprudence  by  the  manual 
of  Gaius,  much  as  English  law  students  have  for  many  years  com- 
menced their  labours  under  the  auspices  of  Blackstone.  It  is 
probably  in  allusion  to  the  familiarity  of  the  Koman  youth  with 
the  writings  of  Gaius  that  Justinian  repeatedly  calls  him  (e.  g.  Inst. 
proem.  6  ;  Inst.  4,  18,  5  ;  and  in  the  Constitution  prefixed  to  the 
Digest,  and  addressed  ad  Antecessores,  §  1),  "our  friend  Gaius" 
(.Gaius  noster).  The  shortness  of  the  time  that  sufficed  Tribonian 
and  his  colleagues  for  the  composition  of  Justinian's  Institutes 

1  P.  xlvii. 

2  These  passages  in  inverted  commas  are  taken  from  Mr.  Poste's  preface  to  the 
third  edition  of  his  work. 


lii  HISTORICAL  INTRODUCTION 

(apparently  a  few  months  towards  the  close  of  the  three  years 
devoted  to  the  compilation  of  the  Digest,  Inst.  proem)  is  less 
surprising  when  we  see  how  closely  Tribonian  has  followed  the 
arrangement  of  Gaius,  and  how  largely,  when  no  change  of  legisla- 
tion prohibited,  he  has  appropriated  his  very  words.' 

'Certain  internal  evidences  fix  the  date  at  which  portions  of  the 
Institutions  were  composed.  The  Emperor  Hadrian  is  spoken  of 
as  departed  or  deceased  (Divius)  except  in  1.  §  47  and  2.  §  57. 
Antoninus  Pius  is  sometimes  (1.  §  53,  1.  §  102)  named  without  this 
epithet,  but  in  2.  §  195  has  the  style  of  Divus.  Marcus  Aurelius 
was  probably  named,  2.  §  126,  and  the  Institutions  were  probably 
published  before  his  death,  for  2.  §  177  contains  no  notice  of  a 
constitution  of  his,  recorded  by  Ulpian,  that  bears  on  the  matter 
in  question.  Paragraphs  3.  §  24,  25,  Would  hardly  have  been 
penned  after  the  Sc.  Orphitianunij  A.  D.  178,  or  the  Sc.  Tertullianum, 
A.  D.  158,'  It  has,  however,  been  held  that  Gaius  when  he  wrote 
the  Institutions  was  acquainted  with  the  Sc.  Tertullianum,  and  that 
a  mention  of  it  occupied  a  gap  in  the  manuscript  which  is  found  in 
3.  33.  See  the  commentary  on  this  passage. 

The  discovery  of  the  text  of  the  Institutions  was  made  in  1816. 
In  that  year  'Niebuhr  noticed  in  the  library  of  the  Cathedral  Chapter 
at  Verona  a  manuscript  in  which  certain  compositions  of  Saint 
Jerome  had  been  written  over  some  prior  writings,  which  in  certain 
places  had  themselves  been  superposed  on  some  still  earlier  in- 
scription. In  communication  with  Savigny,  Niebuhr  came  to  the 
conclusion  that  the  lowest  or  earliest  inscription  was  an  elementary 
treatise  on  Bo  man  Law  by  Gaius,  a  treatise  hitherto  only  known,  or 
principally  known,  to  Roman  lawyers  by  a  barbarous  epitome  of  its 
contents  inserted  in  the  Code  of  Alaric  II,  King  of  the  Visigoths 
(§  1,22,  Comm.).  The  palimpsest  or  rewritten  manuscript  originally 
contained  129  folios,  three  of  which  are  now  lost.  One  folio  be- 
longing to  the  Fourth  Book  (§  136-§  144),  having  been  detached  by 
some  accident  from  its  fellows,  had  been  published  by  Maffei  in  his 
Historia  Tcologica,  A.D.  1740,  and  republished  by  Haubold  in  the 
very  year  in  which  Niebuhr  discovered  the  rest  of  the  codex.' 

'  Each  page  of  the  MS.  generally  contains  twenty-four  lines,  each 
line  thirty -nine  letters  ;  but  sometimes  as  many  as  forty-five.  On 
sixty  pages,  or  about  a  fourth  of  the  whole,  the  codex  is  doubly 
palimpsest,  i.e.  there  are  three  inscriptions  on  the  parchment.  About 
a  tenth  of  the  whole  is  lost  or  completely  illegible,  but  part  of  this 
may  be  restored  from  Justinian's  Institutes,  or  from  other  sources  ; 
accordingly,  of  the  whole  Institutions  about  one-thirteenth  is  wanting, 
one  half  of  which  belongs  to  the  Fourth  Book.' 

'  From  the  style  of  the  handwriting  the  MS.  is  judged  to  be  older 


THE  LIFE  AND  WORKS  OF  GAIUS  liii 

than  Justinian  or  the  sixth  century  after  Christ ;  but  probably  did 
not  precede  that  monarch  by  a  long  interval.' 

'  In  a  year  after  Niebuhr's  discovery  the  whole  text  of  Gaius  had 
been  copied  out  by  Goeschen  and  Hollweg,  who  had  been  sent  to 
Verona  for  that  purpose  by  the  Prussian  Royal  Academy  of  Sciences, 
and  in  1820  the  first  edition  was  published.  In  1874  Studemund 
published  an  apograph  or  facsimile  volume,  the  fruits  of  a  new 
examination  of  the  Veronese  MS.;  and  in  1877  Studemund,  with 
the  assistance  of  Krueger,  published  a  revised  text  of  Gaius  founded 
on  the  apograph.' 

'  In  the  text  of  Gaius,  the  words  or  portions  of  words  which  are 
purely  conjectural  are  denoted  by  italics.  The  orthography  of  the 
Veronese  MS.  is  extremely  inconstant.  Some  of  these  inconstancies 
it  will  be  seen  are  retained  :  e.g.  the  spelling  oscillates  between  the 
forms  praegnas  and  praegnans,  nanctus  and  nactus,  erciscere  and 
herciscere,  prendere  and  prehendere,  diminuere  and  deminuere, 
parentum  and  parentium,  vulgo  and  volgo,  apud  and  aput,  sed  and 
set,  proxumus  and  proximus,  affeetus  and  adfectus,  inponere  and 
imponere  &c.  Some  irregularities  likely  to  embarrass  the  reader,  e.  g. 
the  substitution  of  v  for  b  in  debitor  and  probare,  the  substitution 
of  b  for  v  in  servus  and  vitium,  have  been  tacitly  corrected.  The 
numeration  of  the  paragraphs  was  introduced  by  Goeschen  in  his 
first  edition  of  Gaius,  and  for  convenience  of  reference  has  been 
retained  by  all  subsequent  editors.  The  rubrics  or  titles  marking 
the  larger  divisions  of  the  subject,  with  the  exception  of  a  few  at 
the  beginning,  are  not  found  in  the  Veronese  MS.  Those  that  are 
found  are  supposed  not  to  be  the  work  of  Gaius,  but  of  a  transcriber. 
The  remainder  are  partly  taken  from  the  corresponding  sections  of 
Justinian's  Institutes,  partly  invented  or  adopted  from  other  editors.' 

§  21.   The  Life  and  Works  of  Gaius. 

Of  the  life  of  Gaius  we  know  little.  Even  his  full  name  has  been 
lost ;  for,  if  '  Gaius  '  is  the  familiar  Roman  praenomen  *,  he  must  have 
had  a  family  or  gentile  name  as  well.  It  is  probable  that  he  was  a 
foreigner  by  birth — a  Greek  or  a  Hellenised  Asiatic  ;  but  it  is  also 
probable  that  he  was  a  Roman  citizen,  and  possible  that  he  taught  at 
Rome.  It  is  not  likely  that  he  belonged  to  the  class  of  patented 
jurisconsults  ;  for  his  opinions  are  not  quoted  by  the  subsequent 
jurists  whose  fragments  are  preserved  in  the  Digest ;  it  has  even  been 

1  It  is  a  curious  fact  th&t  Gaios  (rdi'os)  is  found  as  the  name  of  an  Asiatic 
(Gaios,  son  of  Hermaeus,  one  of  the  avvrpwpoi  of  Mithridates  Eupator,  King  of 
Pontus.  See  Delian  inscription  in  Th.  Reinach,  Mithridate  Eupator,  roi  du  Pont, 
p.  52,  and  Plut.  Pomp.  42).  Yet,  if  Gaius  the  jurist  was  a  Roman  citizen,  we 
should  have  expected  him  to  bear  a  Roman,  or  Romanised,  name. 


liv  HISTORICAL  INTRODUCTION 

inferred  that  he  was  not  a  practising  lawyer ;  for  amidst  his 
voluminous  writings  there  is  no  trace  of  any  work  on  Quaestiones. 
His  treatises  may  all  have  been  of  a  professorial  kind.  They 
included,  beside  the  Institutions,  Commentaries  on  the  Provincial 
Edict  and  the  Urban  Edict ;  a  work  on  the  Lex  Julia  et  Papia 
Poppaea ;  a  Commentary  on  the  Twelve  Tables  ;  a  book  called  Aurea  or 
Ees  Quotidianae,  treating  of  legal  doctrines  of  general  application  and 
utility  in  every-day  life  ;  a  book  on  Cases  (apparently  of  a  hypothetical 
character) ;  one  on  Kules  of  Law  (Eegulae) ;  and  special  treatises  on 
Verbal  Obligations,  Manumissions,  Fideicommissa,  Dowries,  and 
Hypotheca.  He  also  wrote  on  the  Tertullian  and  Orphitian  Senatus- 
consults.  Gaius's  Commentary  on  the  Provincial  Edict  is  the  only 
work  of  the  kind  known  to  us.  It  is  not  necessary  to  believe  that 
this  Provincial  Edict  was  the  edict  of  the  particular  province 
(perhaps  Asia)  of  which  he  was  a  native.  It  may  have  been  a 
redaction  of  the  elements  common  to  all  Provincial  Edicts  l. 

The  value  attached  to  Gaius's  powers  of  theoretical  exposition, 
and  to  the  admirable  clearness  and  method  which  made  his  Insti- 
tutions the  basis  of  all  future  teaching  in  Roman  law,  must  have 
been  great ;  for,  in  spite  of  the  fact  that  he  was  not  a  patented  juris- 
consult, he  appears  by  the  side  of  Papinian,  Paulus,  Ulpian,  and 
Modestinus,  in  the  '  Law  of  Citations '  issued  by  Theodosius  II  and 
Valentinian  III  in  426  A.  D.  The  beginning  of  this  enactment  runs 2 : 
'  We  accord  our  approval  to  all  the  writings  of  Papinian,  Paulus, 
Gaius,  Ulpian,  and  Modestinus,  granting  to  Gaius  the  same  authority 
that  is  enjoyed  by  Paulus,  Ulpian  and  the  others,  and  sanctioning 
the  citation  of  all  his  works.' 

Although  so  little  is  known  of  Gaius,  yet  his  date  can  be  approxi- 
mately determined  from  the  internal  evidence  of  his  works.  '  We 
know  that  he  flourished  under  the  Emperors  Hadrian  (117-138  A.D.), 
Antoninus  Pius  (138-161  A.  D.)  and  Marcus  Aurelius  Antoninus 
(161-180  A.  D.).  Gaius  himself  mentions  that  he  was  a  contemporary 
of  Hadrian,  Dig.  34,  5,  7  pr.  He  apparently  wrote  the  First  Book 
of  his  Institutions  under  Antoninus  Pius,  whom  he  mentions,  §  53, 
§  74,  §  102,  without  the  epithet  Divus  (of  divine  or  venerable  memory), 
a  term  only  applied  to  emperors  after  their  decease,  but  in  the 
Second  Book.  §  195,  with  this  epithet.  The  Antoninus  mentioned, 
§  126,  is  either  Pius  or  Marcus  Aurelius  Philosophus.  Respecting 
the  rules  of  Cretio,  2.  §  177  Gaius  appears  not  to  be  cognizant  of 
a  Constitution  of  Marcus  Aurelius  mentioned  by  Ulpian,  22,  34. 
That  he  survived  to  the  time  of  Commodus  appears  from  his  having 
written  a  treatise  on  the  Sc.  Orphitianum  (178  A.  D.),  an  enactment 

1  Cf.  p.  xxxiii  and  p.  xlvii,  note  2.  2  Cod.  Theod.  1.  4.  3. 


THE  LIFE  AND  WORKS  OF  GAIUS  Iv 

passed  under  that  emperor'  during  his  joint  rule  with  his  father 
Marcus  Aurelius  (177-180  A.D.).  This  is  the  latest  date  which  is 
traceable  in  the  life  of  Gaius. 

Gaius  was  thus  an  elder  contemporary  of  Papinian,  who  had 
already  entered  active  life  in  the  reign  of  Marcus  Aurelius  ;  and  he 
stands  at  the  threshold  of  that  brilliant  period  of  the  close  of  Eoman 
Jurisprudence  which  contains  the  names  of  Scaevola,  Papinian, 
Ulpian  and  Paulus,  and  extends  from  the  reign  of  Marcus  Aurelius 
to  that  of  Severus  Alexander  (180-235  A.D.). 


COMMENTAKIVS    PRIMVS 


DE  IVRE 


[l.    DE   IVBE   CIVILI   ET 
NATVRALI.] 

§  1.  Omnes  populi  quilegibus 
et  moribus  reguntur  partim 
KUO  proprio,  partim,  communi 
omnium  hominum  iure  utun- 
tur;  nam  quod  quis\que  popu- 
lus  ipse  sibi  ius  constituit,  id 
ipsius  proprium  est  uocaturque 
ius  ciuile,  quasi  ius  proprium 
ciuitatia;  quod  uero  naturalis 
ratio  inter  omnes  homines  con- 
stituit, id  apud  omnes  populos 
peraeque  custoditur  uocaturque 
ius  gentium,  quasi  quo  iure 
omnes  gentes  utuntur.  populus 
itaque  Romanus  partim  suo  pro- 
prio, partim  communi  omnium 
hominum  iure  utitur.  quae 
singula  qualia  sint,  suis  locis 
proponemus. 

Dig.  1, 1,9  (Gaius),  Inst.  1,2,1. : 

§  2.  Constant  autem  jura 
populi  Romani  ex  legibus,  plebi- 
scitis,  senatusconsultis,  con- 
stitutionibus  principum,  edictis 
eorum  qui  ius  edicendi  habent, 
responsis  prudentium. 

Inst.  ] ,  2, 3. 

§  3.  .Lex  est  quod  populus 
iubet  atque  constituit.  Plebi- 
scitum  est  quod  plebs  iubet 
atque  constituit.  plebs  autem 
a  populo  eo  distat,  quod  populi 
appellatione  uniuersi  ciues  sig- 
nificantur,  connumeratis  etmm 
patriciis ;  plebis  autem  appella- 
tione sine  patriciis  ceteri  ciues 
significantur  ;  unde  olim  pa- 
tricii  dicebant  plebiscitis  se  non 
teneri,  qm'a  sine  auctoritate 
eorum  f  acta  essent ;  sed  postea 


ON  CIVIL  LAW  AND   NATURAL 
LAW. 

§  1.  The  laws  of  every  people 
governed  by  statutes  and  customs 
are  partly  peculiar  to  itself,  partly 
common  to  all  mankind.  The 
rules  established  by  a  given  state 
for  its  own  members  are  peculiar 
to  itself,  and  are  called  jus  civile  ; 
the  rules  constituted  by  natural 
reason  for  all  are  observed  by  all 
nations  alike,  and  are  called  jus 
gentium.  So  the  laws  of  the 
people  of  Rome  are  partly  pecu- 
liar to  itself,  partly  common  to 
all  nations  ;  and  this  distinction 
shall  be  explained  in  detail  in 
each  place  as  it  occurs. 


§  2,  Roman  law  consists  of 
statutes,  plebiscites,  senatuscon- 
sults,  constitutions  of  the  em- 
perors, edicts  of  magistrates 
authorized  to  issue  them,  and 
opinions  of  jurists. 

§  3.  A  statute  is  a  command 
and  ordinance  of  the  people  :  a 
plebiscite  is  a  command  and 
ordinance  of  the  commonalty. 
The  commonalty  and  the  people 
are  thus  distinguished  :  the  people 
are  all  the  citizens,  including  the 
patricians  ;  the  commonalty  are 
all  the  citizens,  except  the  patri- 
cians. Whence  in  former  times 
the  patricians  maintained  that 
they  were  not  bound  by  the 
plebiscites,  as  passed  without 
their  authority  ;  but  afterwards 


DE  IVRE 


[r.  §§1-7. 


a  statute  called  the  lex  Hortensia 
was  enacted,  which  provided  that 
the  plebiscites  should  bind  the 
people,  and  thus  plebiscites  were 
made  co-ordinate  with  statutes. 

§  4.  A  senatusconsult  is  a  com- 
mand and  ordinance  of  the  senate, 
and  has  the  force  of  a  statute, 
a  point  which  was  formerly  con- 
troverted. 

§  5.  A  constitution  is  law  estab- 
lished by  the  emperor  either  by 
decree,  edict,  or  letter ;  and  was 
always  recognized  as  having  the 
force  of  a  statute,  since  it  is  by  a 
statute  that  the  emperor  himself 
acquires  supreme  executive  power. 

§  6.  Power  to  issue  edicts  is 
vested  in  magistrates  of  the  people 
of  Eome,  the  amplest  authority 
belonging  to  the  edicts  of  the  two 
praetors,  the  home  praetor  and 
the  foreign  praetor,  whose  pro- 
vincial jurisdiction  is  vested  in 
the  presidents  of  the  provinces, 
and  to  the  edicts  of  the  curule 
aediles,  whose  jurisdiction  in  the 
provinces  of  the  people  of  Eome 
is  vested  in  quaestors :  in  the 
provinces  of  the  emperor  no 
quaestors  are  appointed,  and  in 
these  provinces,  accordingly,  the 
edict  of  the  aediles  is  not  pub- 
lished. 

§  7.  The  answers  of  jurists  are 
the  decisions  and  opinions  of 
persons  authorized  to  lay  down 
the  law.  If  they  are  unanimous 
their  decision  has  the  force  of 
law;  if  they  disagree,  the  judge 
may  follow  whichever  opinion  he 
chooses,  as  is  ruled  by  a  rescript 
of  the  late  emperor  Hadrian. 


lex  Hortensia  lata  est,  qua  cau- 
tum  est  ut  plebiscita  uniuer- 
sum  populum  tenerent ;  itaque 
eo  modo  legibus  exaequata 
sunt.  Inst.  1 ,  2, 4. 

§  4.  Senatusconsultum  est 
quod  senatus  iubet  atque  con- 
stituit,idque  legis  uicem  optinet, 
quamuis  fuerit  quaesitum. 

Inst.  1,  2,  5. 

§  5.  Constitutio  principis 
est  quod  imperator  decreto  uel 
edicto  uel  epistula  constituit. 
nee  umquam  dubitatum  est, 
quin  id  legis  uicem  optineat, 
cum  ipse  imperator  per  legem 
imperiurn  accipiat. 

Inst.  1,2,  6;  Dig.  1,4,1. 
§6.     — 

ius     autem     edicendi     habent 
magistratus    populi    Romani ; 
sed    amplissimum    ius    est    in 
edictis      duorum      praetorutn, 
urban!  et  peregrin!,  quorum  in 
prouinciis  iurisdictionem  prae- 
sides  earum  habent ;    item  in 
edictis      aedilium      curulium, 
quorum  iurisdictionem  in  pro- 
uinciis   populi    Romani    quae- 
stores    habent ;    nam   in    pro- 
uincias  Caesaris  omnino  quae- 
stores  non  mittuntur,  et  ob  id 
hoc  edictum  in  his  prouinciis 
non  proponitur.        Inst.  1,  2,  7. 
§  7.     Responsa    prudentium 
sunt    sententiae    et    opiniones 
eorum   quibus   permissum    est 
iura  condere.    quorum  omnium 
si  in  unum  sententiae  concur- 
runt,  id  quod  ita  sentiunt  legis 
uicem    optinet;    si   uero    dis- 
sentiunt,  iudici  licet  quam  ue£it 
sententiam    sequi ;    idque    re- 
scripto   diui  Hadrian  i   signifi- 
catur.  Inst.  1,2, 8. 

§  1.  Jurisprudence  treats  exclusively  of  positive  law:  the  ex- 
clusive origin  of  positive  law  is  some  positive  enactment ;  the  term 
positive  enactment  including  both  the  express  or  direct  enactments 


i.  S&  1-7.1         DE  IVRE  GENTIVM  ET  CIVILI  3 

3  3  J 

of  the  political  sovereign,  and  the  implied,  indirect,  circuitous  enact- 
ments imported  by  the  sovereign's  acquiescence  in  the  ruling  of 
subordinate  authorities.  (See  Holland's  Jurisprudence,  chs.  2-5.) 

The  rules  and  principles  denoted  by  the  terms  praetor-made  law, 
jurist-made  law,  judge-made  law,  are  only  law  because  they  are 
impliedly  adopted,  confirmed,  and  ratified  by  the  silent  acquiescence 
of  the  sovereign. 

The  organ  by  which  the  jus  gentium  of  the  Eomans  was  pro- 
mulgated, which  made  it  by  indirect  enactment  a  portion  of  Komaii 
Positive  law,  was  principally  the  Edict  'of  the  Praetor.  The  rela- 
tions of  Eoman  citizens  with  aliens  (peregrini),  that  is,  with  the 
members  of  foreign  states  formerly  subjugated  by  Rome  and  now 
living  under  the  protection  of  Roman  law,  as  well  as  of  aliens  in 
their  intercourse  with  one  another,  became,  about  242  B.C.,  so 
frequent  as  to  be  made  subject  to  the  jurisdiction  of  a  special 
minister  of  justice  called  Praetor  peregrinus,  who,  like  the  Praetor 
urbanus,  published  an  annual  edict  announcing  the  principles  on 
which  justice  would  be  administered.  These  principles  composed 
jus  gentium  as  opposed  to  jus  civium.  Jus  gentium,  that  is  to  say, 
was  not  really,  as  Roman  jurists  imagined  or  represented,  a  collec- 
tion of  the  principles  common  to  the  legislation  of  all  nations,  but 
a  body  of  rules  which  the  Roman  praetor  thought  worthy  to  govern 
the  intercourse  of  Roman  citizens  with  the  members  of  all,  originally 
independent,  but  now  subject,  foreign  nations. 

Gradually  the  rules  originating  in  this  way  were  extended  to  the 
intercourse  of  citizens  with  citizens,  in  cases  where  the  rigorous 
conditions  of  jus  civile  were  not  exactly  satisfied,  and  so  precepts 
of  jus  gentium  were  transferred  from  the  edict  of  praetor  peregrinus 
to  the  edict  of  praetor  urbanus. 

The  portion  of  the  edict  most  fertile  in  principles  of  jus  gentium 
would  be  the  clauses  in  which  the  praetor  announced,  as  he  did 
in  some  cases,  that  he  would  instruct  the  judex,  whom  he  appointed 
to  hear  and  determine  a  controversy,  to  govern  himself  by  a  con- 
sideration of  what  was  aequum  et  bonum,  i.  e.  by  his  views  of 
equity  and  expediency :  and  if  any  of  the  oral  formularies  of  the 
earliest  system  of  procedure  (legis  actiones)  contained  these  or 
equivalent  terms,  such  formularies  may  be  regarded  as  a  source 
of  jus  gentium.  It  may  be  observed  that  Gaius  does  not,  like 
some  other  Roman  jurists  and  notably  Ulpian  (cf.  Dig.  1,  1,  1,  3  ; 
Inst.  1,  2  pr.),  make  any  distinction  between  jus  gentium  and  jus 
naturale.  There  is  nothing  in  his  writings,  as  they  have  come 
down  to  us,  to  draw  attention  to  the  fact  that  the  teaching  of 
nature  may  not  be  in  accordance  with  the  practice  of  nations,  as 
the  institution  of  slavery  showed. 

B  a 


4  DE  IVRE  [i.  §§  1-7. 

Another  organ  of  quasi  publication,  whereby  the  rules  of  jus 
gentium  were  transformed  from  ideal  law  to  positive  law — from 
laws  of  Utopia  to  laws  of  Home — were  the  writings  of  the  jurists, 
who,  at  first  with  the  tacit,  afterwards  with  the  express  permission 
of  the  legislature,  engaged,  nominally  in  interpreting,  really  in 
extending  the  law,  about  the  time  of  Cicero  (De  Legibus,  §  1,  5), 
transferred  to  the  edict  of  the  praetor  the  activity  which  they  had 
formerly  displayed  in  developing  the  law  of  the  Twelve  Tables  and 
the  statutes  of  the  Comitia.  By  these  means,  supplemented  and 
confirmed  by  statute  law  and  custom,  the  jus  gentium  gradually 
increased  in  importance,  and  gave  the  Roman  empire  its  universal 
law. 

Jus  civile,  i.  e.  jus  eivium  or  law  peculiar  to  citizens,  was  the  law 
of  the  Twelve  Tables,  augmented  by  subsequent  legislation,  by  juristic 
interpretation,  and  by  consuetudinary  law.  The  institutions  of  jus 
civile  may  be  exemplified  by  such  titles  to  property  as  Mancipatio 
and  In  Jure  Cessio,  contracts  by  the  form  of  Nexum  and  Sponsio, 
title  to  intestate  succession  by  Agnatio  or  civil  relationship ;  while 
corresponding  institutions  of  jus  gentium  were  the  acquisition  of 
property  by  Tradition,  contract  by  Stipulation  without  the  solemn 
term  Spondeo,  title  to  intestate  succession  by  Cognatio  or  natural 
relationship.  Other  departments  of  life  were  not  subject  to  parallel 
institutes  of  jus  civile  and  jus  gentium,  but  the  mutual  relations  of 
citizens  with  citizens  as  well  as  of  citizens  with  aliens  were  exclu- 
sively controlled  by  jus  gentium :  e.  g.  the  informal  contracts  called 
Consensual,  such  as  buying  and  selling,  letting  and  hiring,  partner- 
ship ;  and  the  informal  contracts  called  Real,  such  as  the  contract  of 
loan  for  use  or  loan  for  consumption. 

Titles  to  ownership  (jus  in  rem),  according  to  jus  gentium,  which 
ultimately  superseded  civil  titles,  are  explained  at  large  in  Book  II. 

In  respect  of  Obligation  (jus  in  personam),  jus  gentium  may  be 
divided  into  two  classes,  according  to  the  degree  in  which  it  was 
recognized  by  Civil  law  : — 

A.  A  portion  of  jus  gentium  was  recognized  as  a  ground  of 
Action.  To  this  class  belong  (1)  the  simple  or  Formless  contracts 
to  which  we  have  alluded.  (2)  obligations  to  indemnify  grounded 
on  delict,  (3)  rights  quasi  ex  contractu  to  recover  property  when  it 
has  been  lost  by  one  side  and  gained  by  the  other  without  any  right 
to  retain  it.  Dig.  12,  6,  14  and  Dig.  25,  2,  25.  Actions  founded  on 
this  obligation  to  restore  (condictiones),  although  it  was  a  species  of 
naturalis  obligatio,  Dig.  12,  6,  15  pr.,  were  as  rigorous  (stricti  juris) 
as  any  in  the  Civil  code.  In  these  cases  the  obligalio,  though 
naturalis  as  founded  in  jus  gentium,  yet,  as  actionable,  was  said 
to  be  civilis  obligatio,  not  naturalis,  Dig.  19,  5,  5,  1. 


1.  §§  1-7.]         DE  IVRE  GENTIVM  ET  CIVILI  5 

The  two  eminently  Civil  spheres  of  the  law  of  obligation  were 
(1)  specialty  or  Formal  contracts,  and  (2)  penal  suits.  Yet  even 
into  these  provinces  jus  gentium  forced  a  partial  entrance.  We 
shall  see  that  aliens  could  be  parties  to  a  Stipulatio  or  Verbal 
contract,  though  not  by  the  Civil  formulary,  Spondeo  3  §  93  ;  and 
to  Transcriptio,  at  least  of  one  kind,  3  §  133,  which  was  a  form 
of  Literal  contract ;  and  could  be  made  plaintiffs  or  defendants  in 
penal  suits  by  means  of  the  employment  of  certain  Fictions,  4  §  37. 
This,  however,  was  rather  the  extension  of  jus  civile  to  aliens  than 
the  intrusion  of  jus  gentium  into  a  Civil  province. 

B.  Other  rights  and  obligations  of  jus  gentium  were  not  admitted 
as  direct  grounds  for  maintaining  an  action,  yet  were  otherwise 
noticed  by  the  institutes  of  civil  jurisprudence  and  indirectly 
enforced.  Thus  a  merely  naturalis  obligatio,  though  not  actionable, 
might  (1)  furnish  a  ground  of  an  equitable  defence  (exceptio) : 
for  instance,  on  payment  of  a  merely  natural  debt  the  receiver  has 
a  right  of  retention,  and  can  bar  the  suit  to  recover  it  back  as  a 
payment  made  in  error  (condictio  indebiti  soluti)  by  pleading  the 
naturalis  obligatio,  Dig.  12,  6,  64;  or  the  defendant  can  meet  a 
claim  by  Compensatio,  4  §  61,  cross  demand  or  set-off,  of  a  debt 
that  rests  on  merely  naturalis  obligatio,  Dig.  40,  7f  20,  2  ;  or  a 
merely  naturalis  obligatio  might  (2)  form  the  basis  of  an  accessory 
obligation,  such  as  Suretyship  (fidejussio)  3  §  119  a,  or  Guaranty 
(constitutum)  Dig.  13,  5,  1,  7,  or  Mortgage  (pignus)  Dig.  20,  1,  5  pr., 
or  Novation,  3  §  176,  Dig.  46,  2,  1,  1,  all  institutions,  which  are 
themselves  direct  grounds  of  action.  Though  these  rights  and 
obligations  of  natural  law  are  imperfect  (obligatio  tantum  naturalis) 
as  not  furnishing  immediate  grounds  of  action,  yet,  as  being  partially 
and  indirectly  enforced  by  Roman  tribunals,  they  clearly  compose 
a  portion  of  Positive  law.  Cf.  3  §§  88,  89  comm. 

§  3.  Plebiscites  as  well  as  the  enactments  of  the  Comitia  populi 
were  called  Leges,  and  were  named  after  the  tribunes  by  whom  they 
were  carried,  as  the  leges  proper  (rarely  called  populiscita)  were 
named  after  the  consul,  praetor  or  dictator  by  whom  they  were 
carried.  Thus  Lex  Canuleia,  Lex  Aquilia,  3  §  210,  Lex  Atinia,  Inst. 

2,  6,  2,  Lex  Furia  testamentaria,  2  §  225,  were  plebiscites  named 
after  tribunes,  while  the  Lex  Valeria  Horatia  was  named  after  two 
consuls,   the    Lex   Publilia  and   Lex  Hortensia  were   named  after 
dictators,  the  Lex  Aurelia,   70  B.  c.,  after  a  praetor.     (As  to   the 
history  of  plebiscita  and  leges  and  of  the  other  sources  of  Eoman 
law  cf.  Historical  Introduction  and  see  Smith's  Diet,  of  Greek  and 
Roman  Antiquities,  3rd  ed.  s.  v.) 

§  4.  The  legislative  power  of  the  senate  was  in  the  time  of  the 
republic  a  matter  of  controversy.  It  is  certain  that  it  had  a  power 


6  DE  IVRE  [i.  §§1-7. 

of  issuing  certain  administrative  decrees  or  instructions  to  magistrates 
that  was  hardly  distinguishable  from  legislation.  Under  the 
emperors  matters  were  changed.  Legislation  by  the  Comitia, 
though  spoken  of  by  Gaius  in  the  present  tense,  had  ceased  to  be 
a  reality  after  the  time  of  Tiberius,  and  the  last  recorded  lex  was 
passed  in  the  reign  of  Nerva.  As  early  as  the  time  of  Augustus  the 
auctoritas  of  the  senate  began  to  be  regarded  as  the  essential  process 
in  making  a  law,  and  the  subsequent  rogatio  of  the  Comitia  as  a 
mere  formality,  which  was  finally  omitted.  Senatusconsults,  like 
laws,  were  sometimes  named  after  the  consuls  who  proposed  them, 
though  this  is  not  in  their  case  an  official  designation ;  they  are 
sometimes  even  called  leges  :  thus  the  measure  which  Gaius  calls 
Sc.  Claudianum,  §  84,  is  subsequently  referred  to  by  him  under  the 
name  of  lex,  §  157,  4  §§  85,  86.  Ulpian  says,  Non  ambigitur  senatum 
jus  facere  posse.  Dig.  1,  3,  9.  Of  course,  these  senatusconsults  were 
merely  a  disguised  form  of  imperial  constitution.  The  sovereignty 
had  in  fact  passed  from  both  patricians  and  plebeians  to  the  hands 
of  the  princeps.  A  measure  was  recommended  by  the  emperor  in  an 
oratio  or  epistola  to  the  senate,  and  then  proposed  by  the  consul 
who  convoked  the  senate,  and  voted  by  the  senate  without  opposi- 
tion. Hence  a  senatusconsult  is  sometimes  called  oratio,  e.  g.  oratio 
divi  Marci,  Dig.  2,  12,  1  pr.  Even  this  form  was  finally  disused. 
No  senatusconsult  relating  to  matters  of  civil  law  occurs  after  the 
time  of  Septimius  Severus. 

§  5.  Although  when  Gaius  wrote  the  emperor  had  not  yet  acquired 
the  formal  right  of  making  statutes,  his  supreme  executive  power 
enabled  him  to  give  to  his  constitutions  the  same  force  as  if  they 
had  been  leges.  The  legal  origin  and  character  of  the  different 
forms  of  imperial  constitution  has  been  much  controverted,  and 
certainly  varied  at  different  periods. 

Edicts  were  legislative  ordinances  issued  by  the  emperor  in  virtue 
of  the  jurisdiction  appertaining  to  him  as  highest  magistrate,  and 
were  analogous  to  the  edicts  of  the  praetors  and  aediles.  In  the 
time  of  Gaius  they  had  only  binding  force  during  the  life  of  the 
emperor  who  issued  them,  requiring  the  confirmation  of  his  successor 
for  their  continuing  validity  ;  but  from  the  reign  of  Diocletian, 
when  the  empire  assumed  an  autocratic  form,  their  duration  ceased 
to  be  thus  limited. 

Deere ta  were  judicial  decisions  made  by  the  emperor  as  the 
highest  appellate  tribunal:  or  in  virtue  of  his  magisterial  juris- 
diction, and  analogous  to  the  extraordinaria  cognitio  of  the 
praetor. 

Epistolae  or  reseripta  were  answers  to  inquiries  addressed  to  the 
emperor  by  private  parties  or  by  judges.  They  may  be  regarded  as 


i.  §§  1-7.]         DE  IVRE  GENTIVM  ET  CIVILI  7 

interpretations  of  law  by  the  emperor  as  the  most  authoritative 
juris  peritus.  Cf.  §  94  comm. 

Some  examples  of  direct  legal  changes  made  by  early  emperors 
are  recorded,  as  the  right  conferred  by  the  edict  of  Claudius  men- 
tioned in  §  32  c  of  this  book. 

The  words  of  Gaius  explaining  why  constitutions  had  the  force  of 
law  seem  to  be  imperfect,  and  may  be  supplemented  from  Justinian, 
who  openly  asserts  for  himself  absolute  authority :  Sed  et  quod 
principi  placuit  legis  habet  vigorem :  cum  lege  regia,  quae  de  imperio 
ejus  lata  est,  populus  ei  et  in  eum  ornne  suum  imperium  et  potestatem 
concessit,  Inst.  1,  2,  6.  The  lex  imperii,  Cod.  6,  23,  6,  was  called  in 
this  and  in  the  corresponding  passage  of  the  Digest  (1,  4,  1)  attributed 
to  Ulpian,  lex  regia,  in  memory  of  the  lex  curiata,  whereby  the  kings 
were  invested  with  regal  power.  According  to  Cicero  the  king  was 
proposed  by  the  senate  and  elected  by  the  Comitia  Curiata,  and  the 
election  was  ratified  in  a  second  assembly  presided  over  by  the  king  ; 
e.  g.  Numam  Pompilium  regem,  patribus  auctoribus,  sibi  ipse  populus 
adscivit,  qui  ut  hue  venit,  quanquam  populus  curiatis  eum  comitiis 
regem  esse  jusserat,  tamen  ipse  de  suo  imperio  curiatam  legem  tulit, 
De  Eepubl.  2,  13,  According  to  Mommsen  and  other  modern 
writers,  however,  the  later  Koman  idea,  that  the  king  was  elected 
by  the  Comitia,  is  wrong,  the  lex  curiata  having  been  passed,  not  to 
elect  a  king,  but  merely  to  ratify  a  previous  election  or  nomination. 
A  lex  curiata  was  also  passed  to  confer  on  a  Eoman  magistratus  his 
imperium,  and  similarly  the  Koman  emperor  derived  some  of  his 
powers  from  leges,  but  it  seems  a  mistake  to  suppose  that  in  the 
time  of  the  principate  a  single  lex  gave  him  his  entire  authority. 
A  fragment  of  a  bronze  tablet,  on  which  was  inscribed  the  lex 
investing  Vespasian  with  sovereign  powers,  was  discovered  at  Kome 
in  the  fourteenth  century,  and  is  still  preserved  in  the  Capitol. 

§  6.  Huschke  points  out  that  the  vacant  space  in  the  MS.  before 
jus  probably  contained  a  definition  of  Edicta. 

All  the  higher  magistrates  of  Kome  were  accustomed  to  issue  edicts 
or  proclamations.  Thus  the  consuls  convoked  the  comitia,  the  army, 
the  senate,  by  edict :  the  censors  proclaimed  the  approaching  census 
by  edict :  the  aediles  issued  regulations  for  the  market  by  edict : 
and  magistrates  with  jurisdiction  published  edicts  announcing  the 
rules  they  would  observe  in  the  administration  of  justice,  the 
Edicts  of  the  Praetor  urbanus,  Praetor  peregrinus,  Aediles  curules 
being  called  Edicta  urbana,  while  the  Edicts  of  the  governors 
of  provinces  were  called  Edicta  provincialia.  These  edicts,  besides 
being  orally  proclaimed,  were  written  on  white  tablets  (in  albo) 
and  suspended  in  the  forum  :  apud  forum  palam  ubi  de  piano 
legi  possit,  Probus,  '  in  the  forum  in  an  open  space  where  persons 


8  DE  IVRE  [i.  §§  1-7. 

standing  on  the  ground  may  read.'  Such  an  edict  was  always 
published  on  entering  on  office  (est  enim  tibi  jam,  cum  magistratum 
inieris  et  in  concionem  adscenderis,  edicendum  quae  sis  observaturus 
in  jure  dicendo,  Cic.  De  Fin.  2,  22),  and  was  then  called  Edictum 
perpetuum,  as  opposed  to  occasional  proclamations^  Edictum  repen- 
tinum.  A  clause  (pars,  caput,  clausula,  edictum)  retained  from  a 
former  edict  was  called  Edictum  tralaticium,  Gellius,  3,  18  ;  and 
though  doubtless  the  edicts  gradually  changed  according  to  changing 
emergencies,  each  succeeding  praetor  with  very  slight  modifications 
substantially  reproduced  the  edict  of  his  predecessor.  In  the  reign 
of  Hadrian  the  jurist  Salvius  Julianus,  called  by  Justinian  Prae- 
toriani  edicti  ordinator,  reduced  the  edict  to  its  definite  form,  and 
if  the  yearly  publication  was  not  discontinued  (cf.  §  6,  jus  edicendi 
habent),  at  all  events  Julian's  co-ordination  of  Praetorian  law  was 
embodied  in  all  subsequent  publications.  Such  was  the  origin  of 
jus  honorarium  (praetorium,  aedilicium),  as  opposed  to  jus  civile  : 
and  from  what  has  preceded,  it  need  hardly  be  stated  that  the 
antithesis,  jus  civile,  jus  honorarium,  is  to  a  great  extent  coincident 
with  the  antithesis,  jus  civile,  jus  gentium. 

It  may  be  observed  that  Gaius  does  not  attribute  to  edicts  the 
force  of  a  statute:  and  this  theoretical  inferiority  of  jus  hono- 
rarium had  a  vast  influence  in  modelling  the  forms  and  proceedings 
of  Koman  jurisprudence^  The  remedy  or  redress  administered  to 
a  plaintiff  who  based  his  claim  on  jus  civile  differed  from  that 
administered  on  an  appeal  to  jus  honorarium,  as  we  shall  see  when 
we  come  to  treat  of  Bonitary  ownership,  Bonorum  possessio,  Actio 
utilis,  in  factum,  ficticia.  This  difference  of  remedy  preserved  jus 
civile  pure  and  uncontaminated,  or  at  least  distinguishable  from  jus 
honorarium  j  but  this  perpetuation  of  the  memory  of  the  various 
origins  of  the  law,  like  the  analogous  distinction  of  Equity  and 
Common  law  in  English  jurisprudence,  was  purchased  by  sacrificing 
simplicity  of  rule  and  uniformity  of  process. 

The  legislative  power  of  the  popular  assembly  and  the  absence 
of  legislative  power  in  the  senate  and  praetor  were  marked  by  a 
difference  of  style  in  the  lex  and  plebiscite,  edict,  and  decree  of 
the  senate:  while  the  lex  and  plebiscite  employed  the  imperative 
(damnas  esto,  jus  potestasque  esto,  &c.),  the  resolutions  of  the  senate 
scrupulously  avoid  the  imperative  and  are  clothed  in  the  forms 
placere,  censere,  arbitrari,  &c.,  as  if  they  were  rather  recommen- 
dations than  commands :  and  the  edicts  and  the  interdicts  of  the 
praetor  are  couched  in  the  subjunctive  (Exhibeas,  Kestituas,  &c.),  a 
milder  form  of  imperative.  Or  to  show  that  their  force  and  opera- 
tion is  limited  to  his  own  tenure  of  office,  they  are  expressed  in  the 
first  person  (actionem  dabo,  ratum  habebo,  vim  fieri  veto).  Where 


I.  §§  1-7.]         DE  IVRE  GENTIVM  ET  CIVILI  9 

he  has  authority  to  command  he  shows  it  by  using  the  imperative, 
as  in  addressing  the  litigants  (mittite  ambo  hominem,  inite  viam, 
redite,  4  §  13  comm.)  or  the  judge  (judex  esto,  condemnato,  absolvito). 
Ihering,  §  47. 

In  the  first  period  of  the  empire,  that  is,  in  the  first  three 
centuries  of  our  era,  it  was  the  policy  of  the  emperors  to  maintain 
a  certain  show  of  republican  institutions,  and  the  administration 
of  the  empire  was  nominally  divided  between  the  princeps  or 
emperor  and  the  people  as  represented  by  the  senate.  Thus,  at 
Rome  there  were  two  sets  of  magistrates,  the  old  republican 
magistrates  with  little  real  power,  consuls,  praetors,  tribunes, 
quaestors,  in  outward  form  elected  by  the  people  ;  and  the  imperial 
nominees  with  much  greater  real  authority,  under  the  name  of 
praefecti,  the  praefectus  urbi,  praefectus  praetorio,  praefectus  vigilum, 
praefectus  annonae,  praefectus  aerario  ;  for  though  nominally  the 
people  and  princeps  had  their  separate  treasuries  under  the  name  of 
aerarium  and  fiscus,  yet  the  treasury  of  the  people  was  not  managed 
by  quaestors  as  in  the  time  of  the  republic,  but  by  an  official 
appointed  by  the  emperor.  Similarly  the  provinces  were  divided 
between  the  people  and  the  prince,  the  people  administering  those 
which  were  peaceful  and  unwarlike,  the  prince  those  which  required 
the  presence  of  an  army.  The  governor  of  a  province,  whether  of 
the  people  or  the  emperor,  was  called  Praeses  Provinciae.  The 
Praeses  of  a  popular  province  was  a  Proconsul,  and  the  chief  sub- 
ordinate functionaries  were  Legati,  to  whom  was  delegated  the  civil 
jurisdiction,  and  quaestors,  who  exercised  a  jurisdiction  corresponding 
to  that  of  the  aediles  in  Rome.  The  emperor  himself  was  in  theory 
the  Proconsul  of  an  imperial  province  ;  but  the  actual  governor, 
co-ordinate  with  the  Proconsul  of  a  senatorial  province,  was  the 
Legatus  Caesaris,  while  the  financial  administration  and  fiscal  juris- 
diction were  committed  to  a  functionary  called  Procurator  Caesaris, 
instead  of  the  republican  Quaestor.  Sometimes  the  same  person 
united  the  office  of  Procurator  and  Legatus,  as,  for  instance,  Pontius 
Pilate. 

§  7.  The  opinions  of  a  jurist  had  originally  only  the  weight  that 
was  due  to  his  knowledge  and  genius ;  but  on  the  transfer  of  power 
from  the  hands  of  the  people  to  those  of  the  princeps,  the  latter 
recognized  the  expediency  of  being  able  to  direct  and  inspire  the 
oracles  of  jurisprudence ;  and  accordingly  Augustus  converted  the 
profession  of  jurist  into  a  sort  of  public  function,  giving  the  decisions 
of  certain  authorized  jurists  the  force  of  law,  Pomponius  in  Dig.  1,  2,  49 
(cf.  Inst.  1,  2,  8).  '  Until  Augustus,  the  public  decision  of  legal 
questions  was  not  a  right  conferred  by  imperial  grant,  but  any  one 
who  relied  on  his  knowledge  advised  the  clients  who  chose  to 


10  DE  IVRE  [i.  §§  1-7. 

consult  him.  Nor  were  legal  opinions  always  given  in  a  letter 
closed  and  sealed,  but  were  generally  laid  before  the  judge  in 
the  writing  or  by  the  attestation  of  one  of  the  suitors.  Augustus, 
in  order  to  increase  their  weight,  enacted  that  they  should  be 
clothed  with  his  authority,  and  henceforth  this  office  was  sought  for 
as  a  privilege.'  Those  jurists  who  had  the  jus  respondendi  were 
called  juris  auctores.  Their  auctoritas  resided,  in  the  first  instance, 
in  their  responsa,  or  the  written  opinions  they  gave  when  consulted 
on  a  single  case  ;  but  in  the  second  instance,  doubtless,  in  their 
writings  (sententiae  et  opiniones),  which  were  mainly  a  compila- 
tion of  their  responsa,  a  fact  which  has  left  its  traces  in  the 
disjointed  and  incoherent  style  which  disagreeably  characterizes 
Eoman  juristic  literature.  The  jus  respondendi  instituted  by 
Augustus  and  regulated  by  Tiberius,  who  themselves  held  the  office 
of  Pontifex  Maximus,  gave  those  to  whom  it  belonged  similar 
authority  in  interpreting  law  as  had  previously  been  exercised  by 
the  College  of  Pontifices — 'omnium  tamen  harum  et  interpretandi 
scientia  et  actiones  apud  Collegium  Pontificum  erant,  ex  quibus 
constituebatur,  quis  quoque  anno  praeesset  privatis '  (Pomponius  in 
Dig.  1,  2,  6  ;  cf.  Sohm,  §  18). 

As  to  the  mode  of  collecting  the  opinions  of  the  juris  auctores 
no  precise  information  has  come  down  to  us,  but  §  6  shows  that  the 
duty  of  the  judex,  in  the  not  uncommon  event  of  the  authorities 
differing  in  their  opinions  on  a  case,  was  open  to  doubt,  till  Hadrian's 
rescript  allowed  him  under  these  circumstances  to  adopt  the  opinion 
he  preferred.  It  may  be  gathered  from  the  words  '  quorum  omnium ' 
that  all  authorized  jurists  had  to  be  consulted.  The  jus  respondendi, 
as  thus  explained,  may  have  continued  in  existence  till  the  end  of 
the  third  century,  by  which  time  the  originative  force  of  Eoman 
jurisprudence  had  ceased.  Instead  of  giving  independent  opinions 
jurists  had  become  officials  of  the  emperor,  advising  him  in  drawing 
rescripts  and  other  affairs  of  imperial  government.  Legal  authority 
rested  in  the  writings  of  deceased  juris  auctores.  (For  a  discussion 
of  the  causes  of  the  decline  of  Roman  Jurisprudence  see  Grueber's 
Art.  in  Law  Quarterly  Review,  vii.  70.)  In  the  course  of  centuries 
the  accumulation  of  juristic  writings  of  co-ordinate  authority  was 
a  serious  embarrassment  to  the  tribunals.  To  remedy  this  evil, 
A.  D.  426,  Valentinian  III  enacted  what  is  called  the  law  of  citations, 
Cod.  Theodosianus,  1,  4,  3,  limiting  legal  authority  to  the  opinions 
of  five  jurists,  Gaius,  Papinian,  Ulpian,  Paulus,  Modestinus,  and  of 
any  other  jurists  whom  these  writers  quoted,  provided  that  such 
quotations  should  be  verified  by  reference  to  the  original  writings  of 
these  jurists  (codicum  collatione  firmentur — on  the  question  of  the 
way  of  interpreting  these  words  cf.  Sohm,  p.  122,  n.  1,  §  21).  In  case 


i.  §§1-7.]         DE  IVRE  GENTIVM  ET  CIVILI  11 

of  a  divergence  of  opinion,  the  authorities  were  to  be  counted,  and  the 
majority  was  to  prevail.  In  case  of  an  equal  division  of  authorities, 
the  voice  of  Papinian  was  to  prevail.  A.  D.  533,  Justinian  published 
his  Digest  or  Pandects,  a  compilation  of  extracts  from  the  writings 
of  the  jurists,  to  which,  subject  to  such  modifications  as  his  com- 
missioners had  made  in  them,  he  gives  legislative  authority.  Every 
extract,  accordingly,  is  called  a  lex,  and  the  remainder  of  the  writings 
of  the  jurists  is  pronounced  to  be  absolutely  void  of  authority.  To 
prevent  the  recurrence  of  the  evil  which  his  codification  was  in- 
tended to  remove,  and  confident  in  the  lucidity  and  adequacy  of  his 
Digest  and  Code,  which  latter  is  a  compilation  of  imperial  statute  law 
after  the  model  of  the  Theodosian  code,  Justinian  prohibits  for  the 
future  the  composition  of  any  juristic  treatise  or  commentary  on  the 
laws.  If  any  one  should  disregard  the  prohibition,  the  books  are  to 
be  destroyed  and  the  author  punished  as  guilty  of  forgery  '(falsitas), 
Cod.  1 ,  1 7,  2,  2 1.  The  constitutions  enacted  by  Justinian  subsequent  to 
the  publication  of  his  code  are  called  Novellae,  Constitutiones  or  Novels. 
We  shall  find  frequent  allusions,  as  we  proceed  in  this  treatise, 
to  the  existence  of  rival  schools  among  the  Roman  juris  auctores. 
This  divergence  of  the  schools  dates  from  the  first  elevation  of  the 
jurist  to  a  species  of  public  functionary,  namely,  from  the  reign  of 
Augustus,  in  whose  time,  as  we  have  seen,  certain  jurists  began  to 
be  invested  by  imperial  diploma  with  a  public  authority.  In  his 
reign  the  rival  oracles  were  M.  Antistius  Labeo  and  C.  Ateius 
Capito  :  Hi  duo  primum  veluti  diversas  sectas  fecerunt,  Dig.  1,  2,  47. 
'  The  first  founders  of  the  two  opposing  sects.'  From  Labeo's  works 
there  are  61  extracts  in  the  Digest,  and  Labeo  is  cited  as  an  authority 
in  the  extracts  from  other  jurists  oftener  than  any  one  else  except 
Salvius  Julianus.  From  Sempronius  Proculus,  a  disciple  of  Labeo, 
and  of  whom  37  fragments  are  preserved  in  the  Digest,  the  school 
derived  its  name  of  Proculianj.  Other  noted  jurists  of  this  school 
were  Pegasus,  in  the  time  of  Vespasian  ;  Celsus,  in  the  time  of 
Domitian,  who  gave  rise  to  the  proverb,  responsio  Celsina,  a  dis- 
courteous answer,  and  of  whom  141  fragments  are  preserved  ;  and 
Neratius,  of  whom  63  fragments  are  preserved.  To  the  other  school 
belonged  Masurius  Sabinus,  who  flourished  under  Tiberius  and 
Nero,  and  from  whom  the  sect  were  called  Sabiniani.  To  the  same 
school  belonged  Caius  Cassius  Longinus,  who  flourished  under  Nero 
and  Vespasian,  and  from  whom  the  sect  are  sometimes  called 
Cassiani :  Javolenus  Priscus,  of  whom  206  fragments  are  preserved  : 
Salvius  Julianus,  the  famous  Julian,  above  mentioned,  of  whom 
456  fragments  are  preserved  :  Pomponius,  of  whom  578  fragments 
are  preserved  :  Sextus  Caecilius  Africanus,  celebrated  for  his  ob- 
scurity, so  that  Africani  lex  in  the  language  of  lawyers  meant  lex 


12  DE  IVRE  [i.  §§  1-7. 

difficilis,  of  whom  131  fragments  are  preserved:  and,  lastly,  our 
author,  Gaius,  who  flourished  under  Hadrian,  Antoninus  Pius,  and 
Marcus  Aurelius,  and  from  whose  writings  535  extracts  are  to  be 
found  in  the  Digest. 

If  we  now  inquire  whether  this  divergence  of  schools  was  based 
on  any  difference  of  principle,  the  answer  is,  No :  on  none,  at  least, 
that  modern  commentators  have  succeeded  in  discovering:  it  was 
merely  a  difference  on  a  multitude  of  isolated  points  of  detail.  We 
are  told  indeed  that  the  founders  were  men  of  dissimilar  characters 
and  intellectual  dispositions  :  that  Labeo  was  characterized  by  bold- 
ness of  logic  and  a  spirit  of  innovation ;  while  Capito  rested  on 
tradition  and  authority,  and  inclined  to  conservatism,  Dig.  1,  2,  47 ; 
but  it  is  altogether  impossible  to  trace  their  opposing  tendencies  in 
the  writings  of  their  successors  :  and  we  must  suppose  that  the 
intellectual  impulse  given  by  Labeo  was  communicated  to  the  fol- 
lowers of  both  schools  of  jurisprudence.  But  though,  as  we  have 
stated,  no  difference  of  principle  was  involved,  each  school  was 
accustomed  to  follow  its  leaders  or  teachers  (praeceptores)  with  much 
servility ;  and  it  is  quite  an  exception  to  find,  on  a  certain  question, 
Cassius,  a  member  of  the  Sabinian  school,  following  the  opinion  of 
Labeo  ;  while  Proculus,  who  gave  his  name  to  Labeo's  school,  pre- 
ferred the  opinion  of  Ofilius,  the  teacher  of  Capito,  3  §  140  ;  Gaius 
too,  who  was  a  Sabinian,  sometimes  inclines  to  the  opinion  of 
the  rival  school ;  cf.  3,  §  98.  Controversies  between  the  two  schools 
are  referred  to  by  Gaius  in  the  following  passages  of  his  Institutes : 
1,  196;  2,  15,  37,  79,  123,  195,  200,  216-222,  231,  244;  3,  87,  98, 
103,  141,  167-8,  177-8;  4,  78-9,  114,  170. 

As  long  as  these  schools  of  law,  which  may  have  derived  their 
constitution  from  the  Greek  schools  of  philosophy,  existed,  the  office 
of  President  appears  to  have  devolved  by  succession  from  one  jurist 
to  another.  (For  an  account  of  this  subject  and  references  to  the 
chief  modern  writers  who  have  discussed  it  see  Sohm,  pp.  98,  &c.) 

We  may  briefly  mention  some  of  the  most  illustrious  jurists  who 
flourished  somewhat  later  than  Gaius.  Aemilius  Papinianus,  who 
was  probably  a  Syrian,  lived  in  the  time  of  Septimius  Severus,  and 
was  murdered  by  the  order  of  Caracalla:  601  extracts  from  his 
writings  are  contained  in  the  Digest.  It  was  perhaps  to  some 
extent  due  to  the  transcendent  genius,  or  at  least  to  the  extra- 
ordinaiy  reputation,  of  Papinian,  which  made  him  seem  too  great 
to  be  reckoned  any  man's  follower,  that  we  cease  about  his  time  to 
hear  of  opposing  schools  of  jurisprudence.  Papinian  appears  to  have 
accompanied  Severus  to  York,  fulfilling  the  important  function  of 
praefectus  praetorio,  so  that  England  may  claim  some  slight  con- 
nexion with  the  brightest  luminary  of  Roman  law. 


i.  §8.]  DE  I VRIS  DIVISIONS  13 

A  disciple  and  colleague  of  Papinian,  of  Syrian  origin,  who  like- 
wise became  praefectus  praetorio,  was  Domitius  Ulpianus,  murdered 
by  the  praetorian  soldiery,  whose  domination  he  resisted,  in  the 
presence  of  the  Emperor  Alexander  Severus  :  2464  fragments,  com- 
posing about  a  third  of  the  whole  Digest,  are  taken  from  his 
writings.  An  epitome  of  his  Liber  Singularis  Eegularum  is  still 
extant  in  a  manuscript  of  the  Vatican  Library,  and  is  the  work 
referred  to  when,  without  mentioning  the  Digest,  we  cite  the 
authority  of  Ulpian. 

Another  disciple  and  colleague  of  Papinian  was  Julius  Paulus,  of 
whose  writings  2081  fragments  are  preserved  in  the  Digest,  forming 
about  a  sixth  of  its  mass.  An  epitome  of  his  treatise  called 
Sententiae  Keceptae  is  found,  with  the  Epitome  of  Gaius,  in  the 
code  of  Alaric  II,  king  of  the  Visigoths  ;  and  it  is  to  this  book  that 
we  refer  when  we  simply  cite  the  authority  of  Paulus. 

A  disciple  of  Ulpian's  was  Herennius  Modestinus,  of  whom  344 
extracts  are  contained  in  the  Digest.  After  Modestinus  the  lustre  of 
Roman  jurisprudence  began  to  decline.  (For  a  detailed  account  of  the 
Roman  jurists,  see  Roby's  Introduction  to  the  Digest,  chs.  vi-xvi.) 

Besides  the  sources  of  law  enumerated  by  Gaius,  the  Institutes 
of  Justinian  (1,  2,  9  and  10)  mention  Custom  or  Usage,  the  source  of 
consuetudinary  or  customary  law  (jus  non  scriptum,  consensu 
receptum,  moribus  introductum).  To  this  branch  of  law  are 
referred,  with  other  rules,  the  invalidity  of  donations  between 
husband  and  wife,  Dig.  24,  1,  1,  the  power  of  a  paterfamilias  to 
make  a  will  for  his  filiusfamilias  who  dies  before  the  age  of  puberty 
(pupillaris  substitutio),  Dig.  28,  6,  2  pr.,  and  universal  succession  in 
Coemption  and  Adrogation,  3  §  82.  See  also  4  §§  26,  27.  We  may 
suppose  that  Customary  law,  like  Roman  law  in  general,  would  fall 
into  two  divisions,  jus  civile  and  jus  gentium,  the  former  embracing 
what  Roman  writers  sometimes  speak  of  as  mores  majorum.  Before 
the  time  of  Gaius,  however,  most  of  Customary  law  must  have  been 
incorporated  by  statute,  as  in  early  times  by  the  law  of  the  Twelve 
Tables,  or  taken  up  into  the  edict  of  the  praetor  or  the  writings  of  the 
jurists,  Cic.  De  Invent.  2,  22,  67;  i.  e.  unwritten  law  must  have 
changed  its  character  and  have  been  transformed  into  written  law. 

[ll.    DE    IVRIS    DI  VISION  E.]  ON    THE    BRANCHES    OF    THE    LAW. 

§  8.     Omne  autem   ius    quo  §  8.  The  whole  of  the  law  by 

utimur  uel  ad  personas  pertinet  which  we   are   governed   relates 

uel  ad  res  uel  ad  actiones.    ei,  either  to  persons,  or  to  things, 

prius  uideamus  de  personis.  or  to   actions  ;    and  let  us   first 

Inst.  1,  2,  12  :  Gaius  in  Dig.  1,  examine  the  law  of  persons. 
5,1. 

§  8.  What  are  the  leading  divisions  of  law — what  are  the  main 


14  DE  IVRE  [i.  §  8. 

masses  into  which  legislation  naturally  breaks  itself — what  are  the 
joints  and  articulations  which  separate  the  whole  code  into  various 
subordinate  codes,  like  the  different  limbs  and  members  of  an 
organic  whole — what  is  the  import  of  the  Gaian  division,  adopted 
perhaps  from  previous  writers,  into  jus  personarum,  jus  rerum,  jus 
actionum,  or  rather,  to  adhere  to  the  classical  phrases,  jus  ad  per- 
sonas  pertinens,  jus  ad  res  pertinens,  jus  ad  actiones  pertinens  ? 

By  jus  ad  actiones  pertinens,  to  begin  with  the  easier  part  of  the 
problem,  there  is  no  doubt  that  the  inventor  of  the  division  intended 
to  designate  the  law  of  PROCEDURE  as  opposed  to  the  law  of 
rights  ;  the  adjective  code,  to  use  Bentham's  phraseology,  as  opposed 
to  the  substantive  code.  There  is  as  little  doubt  that  in  the  Institu- 
tions of  Gaius  this  design  is  not  executed  with  precision,  and  that, 
instead  of  the  law  of  procedure,  the  last  portion  of  his  treatise 
contains  also  to  some  extent  the  law  of  sanctioning  rights,  as  opposed 
to  the  law  of  primary  rights.  (For  the  meaning  of  this  distinction 
see  Austin's  Jurisprudence,  bk.  i.)  Or  perhaps  we  should  say  that 
the  legislative  provisions  respecting  Procedure  have  a  double  aspect : 
a  purely  formal  aspect,  so  far  as  they  give  regularity  and  method 
to  the  enforcement  of  sanctioning  rights ;  and  a  material  aspect, 
so  far  as  certain  stages  of  procedure  (e.g.  litis  contestatio  and  res 
judicata)  operate  like  Dispositions  or  any  other  Titles  to  modify 
the  substantive  rights  of  the  contending  parties.  Procedure,  then, 
is  treated  of  in  these  Institutions  partly  indeed  in  its  formal 
character,  but  still  more  in  its  material  character,  i.e.  so  far  as  its 
incidents  can  be  regarded  as  belonging  to  the  substantive  code. 

It  is  more  difficult  to  determine  the  principle  of  the  other  division, 
the  relation  of  the  law  of  Persons  to  the  law  of  Things.  They  both 
deal  with  the  rights  and  duties  of  persons  in  the  ordinary  modern 
acceptation  of  the  word  ;  why  then,  we  may  inquire,  are  certain 
rights  and  duties  of  persons  separated  from  the  rest  and  dealt  with 
under  the  distinguishing  category  of  jura  personarum?  It  is  not 
enough  to  say  with  Austin  that  the  law  of  Things  is  the  universal 
or  general  portion  of  the  law,  the  law  of  Persons  a  particular  and 
exceptional  branch  ;  that  it  is  treated  separately  on  account  of  no 
essential  or  characteristic  difference,  but  merely  because  it  is  com- 
modious to  treat  separately  what  is  special  and  exceptional  from 
what  is  general  and  universal.  This  answer  furnishes  no  positive 
character  of  the  law  of  Persons,  but  only  the  negative  character 
of  anomaly,  i.  e.  of  unlikeness  to  the  larger  portion  of  the  law ; 
but  it  would  be  difficult  to  show  that  the  law  of  Persons  is  more 
exceptional,  anomalous,  eccentric,  than  the  Civil  dispositions  as 
opposed  to  the  Natural  dispositions  of  the  law  of  Things. 

We  must  look  to  the  details  of  the  law  of  Persons,  and  observe 


i.  §  8.]  DE  IVBJS  DIVISIONE  15 

whether  its  dispositions  have  any  common  character  as  contrasted 
with  the  dispositions  of  the  law  of  Things.  The  law  of  Persons, 
in  other  words,  the  law  of  Status,  classifies  men  as  slaves  and  free, 
as  citizens  (privileged)  and  aliens  (unprivileged),  as  paterfamilias 
(superior)  and  filiusfamilias  (dependent).  The  law  of  Things  looks 
at  men  as  playing  the  parts  of  contractors  or  of  neighbouring 
proprietors ;  in  other  words,  the  law  of  Persons  considers  men  as 
UNEQUALS,  the  law  of  Things  considers  them  as  EQUALS :  the 
one  may  be  defined  as  the  law  of  relations  of  inequality,  the  other  as 
the  law  of  relations  of  equality. 

It  may  induce  us  to  believe  that  the  law  of  unequal  relations 
and  the  law  of  equal  relations  is  a  fundamental  division  of  the 
general  code,  if  we  consider  how  essential  are  the  ideas  of  equality 
and  inequality  to  the  fundamental  conception  of  law.  If  we  ventured 
on  a  Platonic  myth,  we  might  say  that  Zeus,  wishing  to  confer  the 
greatest  possible  gift  on  the  human  race,  took  the  most  opposite 
and  uncombinable  things  in  the  universe,  Equality  and  Inequality, 
and,  welding  them  together  indissolubly,  called  the  product  by  the 
name  of  political  society  or  positive  law. 

The  assumption  will  hardly  be  controverted,  that  in  the  relations 
of  subject  to  subject,  Positive  law,  like  Ethical  law,  recognizes,  as 
an  ideal  at  least,  the  identity  of  the  just  (lawful)  with  the  equal. 
Inequality,  however,  is  no  less  essentially  involved  in  positive  law. 
We  have  seen  that  there  is  no  right  and  no  duty  by  positive  law 
without  a  legislator  and  sovereign  to  whom  the  person  owing  the 
duty  is  in  subjection.  On  the  one  side  weakness,  on  the  other 
irresistible  power.  Positive  rights  and  duties,  then,  imply  both 
the  relation  of  subject  to  subject  and  the  relation  of  subject  to 
sovereign  or  wielder  of  the  sanction,  in  other  words,  both  the  relation 
of  equal  to  equal  and  the  relation  of  unequal  to  unequal.  It  is  the 
more  surprising  that  Austin  should  apparently  have  failed  to  seize 
with  precision  this  conception  of  the  law  of  Persons,  as  he  makes 
the  remark,  in  which  the  whole  truth  seems  implicitly  contained, 
that  the  bulk  of  the  law  of  Persons  composes  the  Public,  Political, 
or  Constitutional  code  (jus  publicum).  Political  society  or  govern- 
ment essentially  implies  subordination.  It  implies,  on  the  one  hand, 
sovereign  power  reposing  in  various  legislative  bodies,  distributed, 
delegated,  and  vested  in  various  corporations,  magistrates,  judges, 
and  other  functionaries ;  on  the  other  hand,  private  persons  or 
subjects  subordinate  to  the  sovereign  power  and  to  its  delegates  and 
ministers.  The  different  forms  of  government  are  so  many  forms 
of  subordination,  so  many  relations  of  superior  and  inferior,  that  is, 
so  many  relations  of  unequals.  Public  law,  then,  is  a  law  of  Status, 
and  the  law  of  Persons  or  law  of  Status  in  the  private  code  is  the 


16  DE  IVKE  [i.  §  8. 

intrusion  of  a  portion  of  the  public  code  into  the  private  code ;  or, 
in  barbarous  and  semi-civilized  legislations,  the  disfigurement  of 
private  law  by  the  introduction  of  relations  that  properly  belong 
to  public  law.  For  instance,  the  most  salient  institution  of  the 
ancient  Eoman  law  of  Persons,  the  power  of  life  and  death  over 
wife  and  child  that  vested  in  the  father  of  the  household,  was  the 
concession  to  a  subject  of  an  attribute  that  properly  belongs  to 
the  sovereign  or  a  public  functionary.  Another  institution,  slavery, 
placed  one  subject  over  another  in  the  position  of  despotic  sovereign. 
The  relation  of  civis  to  peregrinus  may  be  conjectured  to  have 
originally  been  that  of  patronus  to  cliens,  that  is  to  say,  of  political 
superior  to  political  inferior. 

Government  or  positive  law  has  usually  commenced  in  the  inva- 
sion by  the  stronger  of  the  (moral)  rights  of  the  weaker ;  but  so 
necessary  is  inequality  to  equality,  or  subordination  to  co-ordination, 
that  the  (moral)  crimes  of  ancient  conquerors  are  regarded  with 
less  aversion  by  philosophic  historians,  as  being  the  indispensable 
antecedents  of  subsequent  civilization.  The  beginnings,  then,  of 
positive  law  have  been  universally  the  less  legitimate  form  of  in- 
equality, inequality  between  subject  and  subject,  leaving  its  traces 
in  dispositions  of  the  civil  code:  but  the  advance  of  civilization  is 
the  gradual  elimination  of  inequality  from  the  law,  until  little 
remains  but  that  between  magistrate  and  private  person,  or  sove- 
reign and  subject.  Modern  society  has  advanced  so  far  on  the  path 
of  equalization,  in  the  recognition  of  all  men  as  equal  before  the 
law,  that  the  distinctions  of  status,  as  they  existed  in  the  Koman  law 
of  persons,  are  almost  obliterated  from  the  private  code.  Slavery 
has  vanished  ;  parental  and  marital  power  are  of  the  mildest  form ; 
civilized  countries  accord  the  same  rights  to  cives  and  peregrini ; 
guardians  (tutores)  in  modern  jurisprudence,  as  in  the  later  period 
of  Eoman  law,  are  considered  as  discharging  a  public  function,  and 
accordingly  the  relation  of  guardian  and  ward  may  be  regarded  as 
a  portion  of  the  public  code. 

Before  we  terminate  our  general  remarks  on  the  nature  of  status, 
it  is  necessary  to  distinguish  from  the  law  of  Persons  a  department 
of  law  with  which,  in  consequence  of  a  verbal  ambiguity,  it  is  some- 
times confounded.  Blackstone  deserves  credit  for  having  recognized 
Public  law  as  part  of  the  law  of  Persons ;  but  he  also  included  under 
the  law  of  Persons  that  department  of  primary  rights  to  which 
belong  the  right  of  free  locomotion,  the  right  of  using  the  bodily 
organs,  the  right  to  health,  the  right  to  reputation,  and  other  rights 
which  perhaps  more  commonly  emerge  in  the  redress  meted  out  for 
their  violation,  that  is,  in  the  corresponding  sanctioning  rights,  the 
right  of  redress  for  bodily  violence,  for  false  imprisonment,  for  bodily 


i.  §  8.]  DE  IVRIS  DIVISIONE  17 

injury,  for  defamation,  and  the  like.  These,  however,  are  not  the 
special  and  exceptional  rights  of  certain  eminently  privileged  classes, 
but  the  ordinary  rights  of  all  the  community,  at  least  of  all  who  live 
under  the  protection  of  the  law;  they  belong  to  filiusfamilias  as  well 
as  to  paterfamilias,  to  peregrinus  and  latinus  as  well  as  to  civis. 
The  rights  in  question,  that  is  to  say,  do  not  belong  to  the  law  of 
unequal  rights,  or  the  law  of  Persons,  but  to  the  law  of  equal  rights, 
or  the  law  of  Things. 

The  anomalous  institution  of  slavery,  however,  furnishes  a  ground 
for  controverting  this  arrangement ;  for,  as  by  this  legalized  iniquity 
of  ancient  law,  the  slave,  living  as  he  did,  not  so  much  under  the 
protection  as  under  the  oppression  of  the  law,  was  denuded  of  all 
legal  rights,  including  those  of  which  we  speak,  we  cannot  say  that 
these  rights  belong  to  servus  as  well  as  to  liber.  The  same,  how- 
ever, may  be  said  of  contract  rights  and  rights  of  ownership,  for 
the  slave  had  neither  part  nor  lot  in  these  on  his  own  account  any  more 
than  in  the  right  of  a  man  to  the  use  of  his  own  limbs.  In  defining, 
therefore,  jura  rerum  to  be  the  equal  rights  of  all,  we  must  be 
understood  to  mean,  of  all  who  have  any  rights.  Perhaps,  indeed, 
instead  of  saying  that  jura  rerum  are  the  rights  of  men  regarded  as 
equal,  it  would  be  more  exact  to  say,  that  while  jus  personarum 
regards  exclusively  the  unequal  capacities,  that  is,  the  unequal  rights 
of  persons,  jus  rerum  treats  of  rights  irrespectively  both  of  the 
equality  and  the  inequality  of  the  persons  in  whom  they  are  vested, 
leaving  their  equal  or  unequal  distribution  to  be  determined  by  jus 
personarum. 

In  order  to  mark  the  natural  position  of  these  rights  in  the  civil 
code,  I  have  avoided  designating  them,  with  Blackstone,  by  the 
name  of  Personal  rights,  a  term  which  I  am  precluded  from  using 
by  yet  another  reason.  I  have  employed  the  terms  Personal  right 
and  Keal  right  to  mark  the  antithesis  of  rights  against  a  single 
debtor  and  rights  against  the  universe.  Now  the  rights  in  ques- 
tion are  rights  that  imply  a  negative  obligation  incumbent  on  all 
the  world,  that  is  to  say,  in  our  sense  of  the  words  they  are  not 
Personal,  but  Real. 

As  contrasted  with  Acquired  rights  (Erworbene  Eechte,  jus 
quaesitum)  they  are  called  Birthrights  or  PRIMORDIAL  rights 
(Urrechte),  names  which  are  open  to  objection,  as  they  may  seem  to 
imply  a  superior  dignity  of  these  rights,  or  an  independence,  in 
contrast  with  other  rights,  of  positive  legislation,  characters  which 
the  name  is  not  intended  to  connote.  For  purposes  of  classification 
this  branch  of  primary  rights  is  of  minor  importance.  Unlike 
Status,  Dominion,  Obligation,  Primordial  rights  are  not  the  ground 
of  any  primary  division  of  the  code.  The  actions  founded  on  the 


WHITTUCK 


18  DE  PERSONIS  [i.§§9-12. 

infraction  of  Primordial  rights  partly  belong  to  the  civil  code  of 
obligation  arising  from  Tort  (e.g.  actio  injuriarum),  partly  and 
principally  to  the  criminal  code.  (On  the  different  interpretations 
which  have  been  put  on  this  threefold  division  of  Private  Law 
cf.  Moyle's  Introduction  to  the  Inst.  Just.) 

[ill.    DE  CONDICIONE  HOMINVM.]  ON   DIVERSITIES   OF   CONDITION. 

§  9.    Et  quidem  summa  di-          §  9.  The  first  division  of  men 
uisio  de  iure  personarum  haec     by  the  law  of  persons  is  into 
est   quod   omnes  homines   aut     freemen  and  slaves, 
liberi  sunt  aut  serui. 

§10.  Rursusliberorumhorni-         §10.  Freemen  are  divided  into 
num    alii    ingenui    sunt,    alii      freeborn  and  freedmen. 
libertini. 

§  11.  Ingenui  suntqui  liberi  §  11.  The  freeborn  are  free  by 
nati  sunt ;  libertini  qui  ex  birth ;  freedmen  by  manumission 
iusta  seruitute  manumissi  sunt.  from  legal  slavery. 

§  12.  Rursus  libertinorum  §  12.  Freedmen,  again,  are  di- 
(tria  sunt  genera;  nam  aut  vided  into  three  classes,  citizens 
dues  Romani  aut  Latini  aut  of  Kome,  Latins,  and  persons  on 
dediticioTum}  numero  sunt.  the  footing  of  enemies  sur- 
de  quibus  singulis  dispiciamus ;  rendered  at  discretion.  Let  us 
ac  prius  de  cMiticiis.  examine  each  class  in  order,  and 

commence  with  freedmen  assimi- 
lated to  enemies  surrendered  at 
discretion. 

§  12.  As  Gaius  has  not  marked  very  strongly  the  divisions  of 
the  present  book,  it  may  be  worth  while  to  consider  what  are  the 
leading  branches  of  the  doctrine  of  Status.  Status  falls  under 
three  heads — liberty  (libertas),  citizenship  (civitas),  and  domestic 
position  (familia). 

Under  the  first  head,  men  are  divided  into  free  (liberi)  and  slaves 
(servi) :  the  free,  again,  are  either  free  by  birth  (ingenui)  or  by 
manumission  (libertini).  We  have  here,  then,  three  classes  to 
consider:  ingenui,  libertini,  servi. 

Under  the  second  head  men  were  originally  divided  into  citizens 
(cives)  and  aliens  (peregrini).  The  rights  of  citizens  fall  into  two 
branches,  political  and  civil,  the  former  being  electoral  and  legisla- 
tive power  (jus  suffragii)  and  capacity  for  office  (jus  honorum) ;  the 
latter  relating  to  property  (commercium)  or  to  marriage  (connu- 
bium).  Aliens  were  of  course  devoid  of  the  political  portion  of 
these  rights  (suffragium  and  honores) ;  they  were  also  devoid  of 
proprietary  and  family  rights  as  limited  and  protected  by  the  jus 
civile  (commercium  and  connubium),  though  they  enjoyed  corre- 
sponding rights  under  the  jus  gentium.  At  a  subsequent  period 
a  third  class  were  intercalated  between  cives  and  peregrini,  namely, 
Latini,  devoid  of  the  political  portion  of  the  rights  of  citizenship,  and 


I.  §§  9-12.]         DE  CONDICIONE  HOMINVM  19 

enjoying  only  a  portion  of  the  private  rights  of  citizenship,  com- 
mercium  without  connubium.  Here  also,  then,  we  have  three 
classes,  cives,  Latini,  peregrini. 

The  powers  of  the  head  of  a  family  came  to  be  distinguished  by 
the  terms  potestas,  man  us,  mancipium:  potestas,  however,  was 
either  potestas  dominica,  power  over  his  slaves,  or  potestas  patria, 
power  over  his  children,  which,  at  the  period  when  Koman  law  is 
known  to  us,  were  different  in  kind ;  so  that  the  rights  of  pater- 
familias were  really  fourfold.  Manus  or  marital  power  placed  the 
wife  on  the  footing  of  filiafamilias,  which  was  the  same  as  that  of 
filiusfamilias.  Paterfamilias  had  a  legal  power  of  selling  (mancipare) 
his  children  into  bondage ;  and  mancipium,  which  is  also  a  word 
used  to  denote  a  slave,  designated  the  status  of  a  filiusfamilias  who 
had  been  sold  by  his  parent  as  a  bondsman  to  another  paterfamilias. 
In  respect  of  his  purchaser,  such  a  bondsman  was  assimilated  to 
a  slave  i  in  respect  of  the  rest  of  the  world,  he  was  free  and  a 
citizen,  though  probably  his  political  capacities  were  suspended  as 
long  as  his  bondage  (mancipii  causa)  lasted,  §  116*.  As  slaves  are 
treated  of  under  the  head  of  libertas,  and  the  status  of  the  wife 
(manus)  was  not  legally  distinguishable  from  that  of  the  son, 
we  may  say,  that  in  respect  of  domestic  dependence  or  inde- 
pendence (familia),  as  well  as  in  respect  of  libertas  and  civitas, 
men  are  divided  into  three  classes, — paterfamilias,  filiusfamilias, 
and  Qui  in  mancipio  est ;  paterfamilias  alone  being  independent  (sui 
juris),  the  other  two  being  dependent  (alieni  juris)  in  unequal  degrees. 

These  different  classes  are  not  examined  by  Gaius  with  equal 
minuteness.  Under  the  first  head  he  principally  examines  the 
libertini :  the  classes  under  the  second  head,  cives,  Latini,  peregrini, 
are  only  noticed  indirectly,  i.  e.  so  far  as  they  present  a  type  for  the 
classification  of  libertini ;  and  the  bulk  of  the  first  book  of  the 
Institutions  is  devoted  to  domestic  relations. 

In  modern  jurisprudence,  Status  having  disappeared,  the  law  of 
domestic  relations — the  relation  of  husband  to  wife,  parent  to  child, 
guardian  to  ward — constitutes  the  whole  of  that  of  which  formerly 
it  was  only  a  part,  the  law  of  Persons.  It  differs  from  the  rest  of 
the  civil  code  in  that,  while  the  relations  of  Property  and  Obligation 
are  artificial  and  accidental,  the  relations  governed  by  the  code  of 
the  Family  are  natural,  and  essential  to  the  existence  of  the  human 
race:  so  much  so  that  the  principal  relations  of  the  family  extend 
to  the  rest  of  the  animal  world,  and  the  portion  of  the  code  relating 
to  them  is  called  by  Ulpian  pre-eminently  jus  Naturale,  Dig.  1,  1,  3, 
Inst.  1,  2  pr.  Secondly,  whereas  every  feature  of  Property  and 
Obligation  is  the  creation  of  political  law,  Domestic  life  is  only 
partially  governed  by  political  law,  which  leaves  the  greater  portion 

C  2 


20 


DE  PERSONIS 


[i.  §§  13-27. 


of  its  rights  and  duties  to  be  ruled  by  the  less  tangible  dictates  of 
the  moral  law. 

The  pure  law  of  the  Family,  that  is,  when  we  exclude  all  con- 
sideration of  Property  and  Obligation  relating  to  property,  is  of 
very  moderate  compass :  but  with  the  pure  code  of  the  family  it  is 
convenient  to  aggregate  what  we  may  call  with  Savigny,  Syst.  §  57, 
the  applied  code  of  the  Family,  i.  e.  such  of  the  laws  of  Property  and 
Obligation  as  concern  members  of  the  family  group — husband  and 
wife,  parent  and  child,  guardian  and  ward.  The  main  divisions 
then  of  the  substantive  code  are  Family  law  Pure  and  Applied  ;  the 
law  of  Ownership ;  and  the  law  of  Obligation.  If,  in  view  of  its 
importance,  we  separate  from  the  law  of  Ownership  the  law  of 
Rerum  Universitates,  confining  the  law  of  Ownership  to  the  province 
of  Ees  singulae,  we  may  add  to  the  three  we  have  enumerated  a 
fourth  division,  the  law  of  Successions  per  universitatem.  Sohm,  §  29. 


[lIII.      DE  DEDITICIIS  VEL  LEGE 
AELIA   SENTIA.] 

§  13.  Lege  itaque  Aelia 
Sentia  cauetur  ut  qui  serui  a 
dominis  poenae  nomine  uincti 
sint,  quibusue  stigmata  in- 
scripta  sint,  deue  quibus  ob 
noxam  quaestio  tormentis  ha- 
bita  sit  et  in  ea  noxa  fuisse 
conuicti  sint,  quiue  ut  ferro 
aut  cum  bestiis  depugnarent 
traditi  sint,  inue  ludum  custo- 
diamue  comecti  fuerint,  et  postea 
uel  ab  eodem  domino  uel  ab 
alio  manumissi,  eiusdem  con- 
dicionis  liberi  fiant,  cuius  con- 
dicionis  suntperegrini  deditim. 

[V.      DE   PEEEGRINIS  DEDI- 
TICIIS.] 

§  14.  Vocantur  autem  pere- 
grini  dediticii  hi  qui  quondam 
aduersus  populum  Romanum 
armis  susceptis  pugnauerunt, 
deinde  uicti  se  dediderunt. 

§  15.  Huius  ergo  turpitu- 
dinis  seruos  quocumque  modo 
et  cuiuscumque  aetatis  manu- 
missos,  etsi  pleno  iure  domi- 
norum  fuerint,  numquam  aut 
ciues  Romanes  aut  Latinos  fieri 


FREEDMEN  ASSIMILATED  TO  SUR- 
RENDERED FOES  AND  DISPOSI- 
TIONS OF  THE  LEX  AELIA  SENTIA. 

§  13.  The  law  Aelia  Sentia 
enacts  that  slaves  who  have  been 
punished  by  their  proprietors 
with  chains,  or  have  been  branded, 
or  have  been  examined  with 
torture  on  a  criminal  charge,  and 
have  been  convicted,  or  have  been 
delivered  to  fight  with  men  or 
beasts,  or  have  been  committed  to 
a  gladiatorial  school  or  a  public 
prison,  if  subsequently  manu- 
mitted by  the  same  or  by  another 
proprietor,  shall  acquire  by  manu- 
mission the  status  of  enemies 
surrendered  at  discretion. 


CONCERNING    SURRENDERED 
ENEMIES. 

§  14.  Surrendered  enemies  are 
people  who  have  taken  up  arms 
and  fought  against  the  people  of 
Eome  and  having  been  defeated 
have  surrendered. 

§  15.  Slaves  tainted  with  this 
degree  of  criminality,  by  what- 
ever mode  they  are  manumitted 
and  at  whatever  age,  and  notwith- 
standing the  plenary  dominion 
of  their  proprietor,  never  become. 


I.  §§  13-27.] 

«  3  -1 


DE  LIBERTINIS 


21 


dicemus,  sed  omni  modo  dedi- 
ticiorum  numero  constittd  in- 
tellegeinus. 

§  16.  Si  uero  in  nulla  tali 
turpitudine  sit  seruus,  manu- 
missum  modo  ciuem  Romanum 
modo  Latinum  fieri  dicemus. 

§  17.  Nam  in  cuius  persona 
tria  haec  concurrunt,  ut  maior 
sit  annorum  triginta,  et  ex  iure 
Quiritium  domini,  et  iusta  ac 
legitima  inanumissione  libere- 
tur,  id  est  uindicta  aut  censu 
aut  testamento,  is  ciuis  Ro- 
manus  fit ;  sin  uero  aliquid 
eorum  deerit,  Latinus  erit. 


[FT.      DE  MANVMISSIONE  VEL 
CAVSAE   PROBATIONS.] 

§  18.  Quod  autem  de  aetate 
serui  requiritur,  lege  Aelia 
Sentia  introductum  est.  nam 
ea  lex  minores  xxx  annorum 
seruos  non  aliter  uoluit  manu- 
missos  ciues  Roman  os  fieri, 
quam  si  uindicta,  apud  con- 
silium  iusta  causa  manumis- 
sionis  adprobata,  liberati  fue- 
rint. 

§  19.  Iusta  autem  causa 
manumissionis  est  ueluti  si 
quis  filium  filiamue  aut  fratrem 
sororemue  naturalem,aut  alum- 
num,  aut  paer^agogum,  aut 
seruum  procuratoris  habendi 
gratia,  aut  ancillam  matrimonii 
causa,  apud  consilium  manu- 
mittat.  » 


[rZJ.   DE  CONSILIO  ADHIBENDO.] 

§  20.   Consiliuin   autem  ad- 
hibetur  in  urbe  Roma  quidem 


citizens  of  Rome  or  Latins,  but 
can  only  acquire  the  status  of 
enemies  who  have  surrendered. 

§  1 6.  If  the  slave  has  not  com- 
mitted offences  of  so  deep  a  dye, 
manumission  sometimes  makes 
him  a  citizen  of  Rome,  sometimes 
a  Latin. 

§  17.  A  slave  in  whose  person 
these  three  conditions  are  united, 
thirty  years  of  age,  quiritary 
ownership  of  the  manumitter, 
liberation  by  a  civil  and  statutory 
mode  of  manumission,  i.  e.  by 
the  form  of  vindicta,  by  entry 
on  the  censor's  register,  by  testa- 
mentary disposition,  becomes 
a  citizen  of  Rome:  a  slave 
who  fails  to  satisfy  any  one  of 
these  conditions  becomes  only  a 
Latin. 

ON  MANUMISSION  AND  PROOF  OF 
ADEQUATE  GKOUNDS  OF  MANU- 
MISSION. 

§  18.  The  requisition  of  a  cer- 
tain age  of  the  slave  was  intro- 
duced by  the  lex  Aelia  Sentia, 
by  the  terms  of  which  law,  unless 
he  is  thirty  years  old,  a  slave 
cannot  on  manumission  become 
a  citizen  of  Rome,  unless  the 
mode  of  manumission  is  by  the 
form  of  vindicta,  preceded  by 
proof  of  adequate  motive  before 
the  council. 

§  19.  There  is  an  adequate 
motive  of  manumission  if,  for  in- 
stance, a  natural  child  or  natural 
brother  or  sister  or  foster  child 
of  the  manumitter's,  or  a  teacher 
of  the  manumitter's  child,  or  a 
male  slave  intended  to  be  em- 
ployed as  an  agent  in  business, 
or  a  female  slave  about  to  become 
the  manumitter's  wife,  is  presented 
to  the  council  for  manumission. 

CONCERNING   THE   CONSTITUTION   OF 
THE    COUNCIL. 

§  20.  The  council  is  composed 
in  the  city  of  Rome  of  five  sena- 


22 


DE  PERSONIS 


[i.  §§  13-27. 

L  v  a 


quinque  senatorum  et  quinque 
equitum  Romanorum  puberum  ; 
in  prouinciis  autem  uiginti 
recuperatorum  ciuium  Roma- 
norum, idque  fit  ultimo  die 
conuentus ;  sed  Romae  certis 
diebus  apud  consilium  manu- 
mittuntur.  maiores  uero  tri- 
ginta  annorum  serui  semper 
manuinitti  solent,  adeo  ut  uel 
in  transitu  manumittantur, 
ueluti  cum  praetor  aut  pro 
consule  in  balneum  uel  in  thea- 
trum  eat. 

§  21.  Praeterea  minor  tri- 
ginta  annorum  seruus  [manu- 
missus]  potest  ciuis  Romanus 
fieri,  si  ab  eo  domino  qui  sol- 
uendo  non  erat,  testamento 
eum  liberum  et  heredem  re- 

lictum «• 

(24  uersus  in  C  legi  nequeunt) 
Ulp.  1,  14 ;  Inst.  1,6,  1 ;  Epit. 
1,  1,  2. 

§  22.  •  homines  Latini 

luniani  appellantur  ;  Latini 
ideo,  quia  adsimulati  sunt 
Latini  s  coloniariis  ;  luniani 
ideo,  quia  per  legem  luniam 
libertatem  acceperunt,cum  olim 
serui  uiderentur  esse. 


§  23.  New  tamen  illis  per- 
mittit  lex  lunia  uel  ipsis  testa- 
mentum  facere,  uel  ex  testa- 
mento alieno  capere,  uel  tutores 
testamento  dari.  Ulp.  20, 14. 

§  24.  Quod  autem  diximus 
ex  testamento  eos  capere  non 
posse,  ita  intellegemus,  ne  quid 
cftrecto  hereditatis  legatorumue 
nomine  eos  posse  capere  dica- 
nms:  alioquin  per  fideicom- 
missum  capere  possunt. 

§  25.  Hi  uero  qui  dediticio- 


tors  and  five  Roman  knights 
above  the  age  of  puberty :  in  the 
provinces  of  twenty  recuperators, 
who  must  be  Roman  citizens,  and 
who  hold  their  session  on  the  last 
day  of  the  assize.  At  Rome  the 
council  holds  its  session  on  certain 
days  appointed  for  the  purpose. 
A  slave  above  the  age  of  thirty 
can  be  manumitted  at  any  time, 
and  even  in  the  streets,  when  the 
praetor  or  pro-consul  is  on  his 
way  to  the  bath  or  theatre. 


§  21.  Under  the  age  of  thirty  a 
slave  becomes  by  manumission 
a  citizen  of  Rome,  when  his  owner 
being  insolvent  leaves  a  will,  in 
which  he  gives  him  his  freedom 
and  institutes  him  his  heir  (2 
§  154),  provided  that  no  other 
heir  accepts  the  succession. 


§  22.  Slaves  manumitted  in 
writing,  or  in  the  presence  of 
witnesses,  or  at  a  banquet,  are 
called  Latini  Juniani:  Latini  be- 
cause they  are  assimilated  in 
status  to  Latin  colonists  (§  131), 
Juniani  because  they  owe  their 
freedom  to  the  lex  Junia,  before 
whose  enactment  they  were  slaves 
in  the  eye  of  the  law. 

§  23.  These  freedmen,  however, 
are  not  permitted  by  the  lex 
Junia  either  to  make  a  will  or 
to  take  under  the  will  of  another, 
or  to  be  appointed  testamentary 
guardians. 

§  24.  Their  incapacity  to  take 
under  a  will  must  only  be  under- 
stood as  an  incapacity  to  take 
directly  as  heirs  or  legatees,  not 
to  take  indirectly  as  beneficiaries 
of  a  trust. 

§  25.   Freedmen   classed   with 


I.  §§  13-27.] 


DE  LIBERTINIS 


23 


rum  numero  sunt  nullo  modo 
ex  testamento  capere  possunt, 
non  magis  quam  quilibet  pere- 
grinus,  -nee  ipsi  testamentum 
facere  possunt  secundum  id 
quod  magis  placuit, 

§  26.  Pessima  itaque  libertas 
eorum  est  qui  dediticiorum 
numero  sunt ;  nee  ulla  lege 
aut  senatusconsulto  aut  con- 
stitutione  principali  aditus  illis 
ad  ciuitatem  Romanam  datur. 

§  27.  Quin  etiam  in  urbe 
Roma  uel  intra  centesimum 
urbis  Romae  miliarium  morari 
prohibentur;  et  si  qui  contra 
ea  fecerint,  ipsi  bonaque  eorum 
publice  uenire  iubentur  ea  con- 
dicione,  ut  ne  in  urbe  Roma 
uel  intra  centesimum  urbis 
Romae  miliarium  seruiant  neue 
umquam  manumittantur  ;  et  si 
manumissi  fuerint,  serui  populi 
Romani  esse  iubentur.  et  haec 
ita  lege  Aelia  Sentia  cowpre- 
hensa  sunt. 


surrendered  enemies  are  incapable 
of  taking  under  a  will  in  any 
form,  as  are  other  aliens,  and  are 
incompetent  to  make  a  will  ac- 
cording to  the  prevalent  opinion. 

§  26.  It  is  only  the  lowest 
grade  of  freedom,  then,  that  is 
enjoyed  by  freedmen  assimilated 
to  surrendered  aliens,  nor  does 
any  statute,  senatusconsult,  or 
constitution  open  to  them  a  way 
of  obtaining]  Roman  citizen- 
ship. 

§  27.  Further,  they  are  forbidden 
to  reside  in  the  city  of  Rome  or 
within  the  hundredth  milestone 
from  it ;  and  if  they  disobey  the 
prohibition,  their  persons  and 
goods  are  directed  to  be  sold  on 
the  condition  that  they  shall  be 
held  in  servitude  beyond  the 
hundredth  milestone  from  the 
city,  and  shall  be  incapable  of 
subsequent  manumission,  and,  if 
manumitted,  shall  be  the  slaves 
of  the  Roman  people :  and  these 
provisions  are  dispositions  of  the 
lex  Aelia  Sentia. 


§  14.  Peregrini  dediticii.     Cf.  Livy  1,  38  ;  Theoph.  1,  5,  3. 

§  15.  Pleno  jure.     Cf.  §  54  and  2  §  41. 

§  17.  The  earliest  forms  of  manumission  depended  on  the  fiction 
that  the  slave  is  a  freeman.  They  therefore  carry  us  back  to  a  time 
when  manumission  was  not  legally  recognized.  Cf.  Sohm,  p.  174, 
n.  4,  and  p.  58,  n.  4.  Manumission  was  either  a  public  or  a  private 
act.  When  manumission,  besides  freeing  a  slave  from  the  dominion 
of  his  proprietor,  converted  him  into  a  citizen  of  Rome,  it  was  not 
a  matter  of  merely  private  interest  to  be  accomplished  by  the  sole 
volition  of  the  proprietor.  Accordingly,  the  three  modes  of  manu- 
mission which  conferred  Roman  citizenship  on  the  manumitted 
slave,  vindicta,  censu,  testamento,  involved  in  different  forms  the 
intervention  of  the  State. 

In  manumission  by  Vindicta  the  State  was  represented  by  the 
praetor.  The  vindicta  or  festuca  was  a  rod  or  staff,  representing 
a  lance,  the  symbol  of  dominion,  with  which  the  parties  in  a  real 
action  (vindicatio)  touched  the  subject  of  litigation  as  they  solemnly 


24  DE  PEKSONIS  [i.§§  13-27. 

pronounced  their  claim,  4  §  16.  Accordingly  it  was  used  in  a  suit 
respecting  freedom  (liberalis  causa),  for  this,  as  status  is  a  real  right 
(jus  in  rem),  was  a  form  of  real  action,  and  was  sometimes  pro- 
secuted by  way  of  genuine  litigation,  sometimes  was  merely  a  solemn 
grant  of  liberty,  that  is,  a  species  of  alienation  by  surrender  in  the 
presence  of  the  magistrate  (in  jure  cessio).  In  a  liberalis  causa  the 
slave  to  be  manumitted,  being  the  subject  of  the  fictitious  litigation, 
could  not  himself  be  a  party,  but  was  advocated  by  a  vindex  or 
adsertor  libertatis,  who  in  later  times  was  usually  represented  by 
the  praetor's  lictor.  The  adsertor  grasping  the  slave  with  one  of 
his  hands,  and  touching  him  with  the  vindicta,  asserted  his  freedom. 
The  proprietor  quitting  his  grasp  of  the  slave  (manu  mittens)  and 
confessing  by  silence  or  express  declaration  the  justice  of  the  claim, 
the  magistrate  pronounced  the  slave  to  be  free.  This  procedure, 
which  came  to  be  much  curtailed,  belonging  to  the  praetor's  volun- 
tary, not  his  contentious,  jurisdiction,  did  not  require  the  praetor  to 
be  seated  on  his  elevated  platform  in  the  comitium  (pro  tribunali), 
but  might  be  transacted  by  him  on  the  level  ground  (de  piano) ;  and 
as  the  mere  presence  of  the  praetor  constituted  a  court  (jus),  he  was 
usually  seized  upon  for  the  purpose  of  manumissions  as  he  was 
preparing  to  take  a  drive  (gestatio),  or  to  bathe,  or  to  go  to  the 
theatre,  §  20  (for  the  different  accounts  given  of  this  mode  of  manu- 
mission see  Roby,  Private  Law,  1,  p.  26,  n.  1). 

In  manumission  by  the  Census  the  interests  of  the  State  were 
represented  by  the  censor.  Censu  manumittebantur  olim  qui 
lustrali  censu  Romae  jussu  dominorum  inter  cives  Romanos 
censum  profitebantur,  Ulpian,  1,  8.  'Registry  by  the  censor  was 
an  ancient  mode  of  manumission  by  the  quinquennial  census  at 
Rome  when  a  slave  at  his  master's  order  declared  his  right 
to  make  his  return  of  property  (professio)  on  the  register  of 
Roman  citizens.'  Ex  jure  civili  potest  esse  contentio,  quum 
quaeritur,  is  qui  domini  voluntate  census  sit,  continuone  an  ubi 
lustrum  conditum  liber  sit,  Cic.  De  Orat.  1,  40.  'It  is  a  question 
of  civil  law,  when  a  slave  is  registered  with  his  owner's  sanction, 
whether  his  freedom  dates  from  the  actual  inscription  on  the 
register  or  from  the  close  of  the  censorial  period.'  The  census 
was  a  republican  institution,  which  had  been  long  obsolete  when 
Gaius  wrote.  Ulpian,  1.  c.,  speaks  of  it  as  a  thing  of  the  past. 
Since  the  Christian  era  only  three  had  been  held,  the  last  under 
Vespasian,  A.  D.  74. 

Wills  were  originally  executed  at  the  Comitia  calata,  2  §  101, 
where  the  dispositions  of  the  testator,  including  his  donations  of 
freedom,  received  legislative  sanction,  being  converted  into  a  private 
law  by  the  ratification  of  the  sovereign  assembly.  When  a  new 


i.  §§  13-27.]  DE  LIBERTINIS  25 

form  of  will  was  introduced,  2  §  102,  testators  retained  their  power 
of  manumission,  although  the  people  here  at  the  utmost  were 
only  symbolically  represented  by  the  witnesses  of  a  mancipation. 
Bequests  of  liberty  were  either  direct  or  indirect.  A  direct  bequest 
of  liberty  (directo  data  libertas)  made  the  manumitted  slave  a  freed- 
man  of  the  testator  (libertus  orcinus,  Inst.  2,  24,  2):  an  indirect 
bequest,  that  is,  a  request  to  the  heir  to  manumit  the  slave  (fidei- 
commissaria  libertas),  made  the  slave  on  manumission  a  freedman 
of  the  heir,  2  §  266. 

§  18.  The  lex  Aelia  Sentia  passed  in  the  reign  of  Augustus,  A.D.  4, 
and  named  after  the  consuls  Sextus  Aelius  Catus  and  Caius  Sentius 
Saturninus,  was  intended  to  throw  obstacles  in  the  way  of  acquir- 
ing Koman  citizenship  (Sueton.  Aug.  40).  One  of  its  enactments 
provided  that  a  slave  under  the  age  of  thirty  could  not  be  made 
a  citizen  unless  manumitted  by  vindicta,  after  proof  of  adequate 
motive  before  a  certain  judicial  board.  We  may  inquire  what  would 
be  the  effect  of  manumission  if  the  causae  probatio  were  omitted. 
Inscription  on  the  censor's  register,  if  in  use,  would  probably  have 
been  null  and  void,  as  this  ceremony  was  either  a  mode  of  making 
a  Eoman  citizen  or  it  was  nothing.  Testamentary  manumission,  as 
we  learn  from  Ulpian,  1,  12,  left  the  man  legally  a  slave,  but  gave 
him  actual  liberty  (possessio  libertatis,  in  libertate  esse,  as  opposed 
to  libertas),  a  condition  recognized  and  protected  by  the  praetor. 
Manumission  by  vindicta  left  him  still  a  slave  (according  to  the 
MS.  of  Ulpian,  ib.  the  slave  of  Caesar).  Either  the  lex  Aelia  Sentia 
or  lex  Junia,  it  is  uncertain  which  (cf.  §§  29,  31  ;  Ulpian,  1.  c.), 
apparently  provided  that,  in  the  absence  of  causae  probatio,  the 
minor  triginta  annis  manumissus  should  belong  to  the  new  class 
which  it  introduced,  namely,  the  Latini. 

§  19.  Alumnus  denotes  a  slave  child  reared  by  the  manumitter, 
as  appears  from  the  following  passage :  Alumnos  magis  mulieribus 
conveniens  est  manumittere,  sed  et  in  viris  receptum  est,  satisque 
est  permitti  eum  manumitti  in  quo  nutriendo  propensiorem  animum 
fecerint,  Dig.  40,  2,  14  pr.  'Foster  children  are  more  naturally 
manumitted  by  women  than  by  men,  though  not  exclusively ;  and 
it  suffices  to  allow  the  manumission  of  a  child  who  has  won  his 
master's  affection  in  the  course  of  his  education.'  (For  the  custom 
derived  from  Greece  of  employing  slaves  as  paedagogi  in  Koman 
households  see  Smith's  Diet,  of  Greek  and  Koman  Antiq.  s.  v.) 

§  20.  The  Equites  Romani,  who  at  Rome  composed  a  moiety 
of  the  council  mentioned  in  the  text,  were  either  Equites  or  Equites 
equo  publico  (for  the  title  eques  Romanus  equo  publico,  which  appears 
in  inscriptions,  see  Wilmann's  Index  Inscriptionum,  2178,  2182  ;  cf. 
Greenidge,  Infamia,  p.  88).  Eques  was  such  merely  by  his  census : 


26  DE  PERSONIS  [i.  §§  13-27. 

Eques  equo  publico  was  a  youth  nominated  by  the  emperor  to  the 
turmae  equitum  ;  not,  however,  intended  for  actual  service  with  the 
legions,  but  merely  marked  out  as  an  expectant  of  future  employ- 
ment in  higher  public  functions,  military  or  civil.  The  title  of 
Princeps  juventutis,  often  conferred  by  the  emperors  on  their  suc- 
cessors designate,  denoted  the  leader  of  the  Equites  equo  publico. 
This  distinction  of  classes  among  Equites  lasted  down  to  the  time 
of  Hadrian,  and  perhaps  later.  In  the  time  of  Augustus,  and  sub- 
sequently, the  list  of  judices  (album  judicum)  was,  according  to 
Mommsen  (Staatsr.  3,  p.  535),  taken  simply  from  the  Equites 
equo  publico,  the  Senatores  being  no  longer  a  decuria.  Augustus 
added  a  new  decuria,  the  Ducenarii,  those  whose  census  amounted 
to  200,000  sesterces,  who  judged  minor  cases ;  and  subsequently 
Caligula  added  a  fifth  (cf.  Greenidge's  Koman  Public  Life). 

Kecuperators  are  judges  not  taken  from  the  panel  (album  judi- 
cum) ;  see  Greenidge's  Legal  Procedure  of  Cicero's  Time,  p.  266. 

§  21.  Ulpian  says,  1,  14,  that  a  slave  either  under  thirty  years  of 
age,  or  one  who  otherwise  would  only  have  become  dediticius,  or 
a  freedman  of  the  lowest  class,  if  he  is  instituted  the  heres  neces- 
sarius  of  an  insolvent,  becomes  civis  Komanus;  cf.  2  §  154. 
Mommsen  would  supplement  the  text  in  this  section  with  the 
following  words — '  relictum  alius  heres  nullus  excludit  neque  ullus 
alius  ex  eo  testamento  heres  existat  idque  eadem  lege  cautum  est.' 
In  respect  of  what  is  missing  in  the  remainder  of  the  lacuna  cf.  note 
to  Huschke's  Gaius. 

When  manumission  was  a  purely  private  act,  it  could  not  confer 
Koman  citizenship ;  it  could  only  make  a  dediticius  or  a  latinus. 

The  codex  Alaricianus  or  Breviarium  Alaricianum,  a  code  pro- 
mulgated A.D.  506  by  Alaric  II,  king  of  the  Visigoths  of  Spain  and 
Gaul,  contained,  besides  extracts  from  the  codex  Theodosianus  (pro- 
mulgated A.D.  438),  a  selection  from  the  Sententiae  of  Paulus  and 
an  epitome  of  these  Institutes  of  Gaius.  From  this  epitome  it 
appears  that  in  the  paragraphs  now  obliterated  Gaius  proceeded  to 
explain  the  modes  of  private  manumission  by  which  a  slave  became 
Latinus  Junianus,  and  instanced  writing  (per  epistolam),  attestation 
of  witnesses  (inter  amicos),  invitation  of  the  slave  to  sit  with  other 
guests  at  the  table  of  his  master  (convivii  adhibitione). 

§  22.  The  lex  Junia,  as  this  law  is  called  by  Gaius  and  Ulpian 
(3,  3),  or  lex  Junia  Norbana,  the  title  given  to  it  by  Justinian 
(Inst.  1,  5,  3),  may  be  regarded  a.s  of  uncertain  date  ;  the  common 
opinion  based  on  the  word  Norbana  has  been  that  it  was  passed  in 
the  reign  of  Tiberius,  A.  D.  19,  fifteen  years  after  the  lex  Aelia 
Sentia  in  the  consulate  of  Marcus  Junius  Silanus  and  Lucius 
Norbanus  Balbus,  but  it  is  now  thought  by  some  well-known 


I.  §§  13-27.]  DE  LIBERTINIS  27 

writers  to  be  earlier  than  the  lex  Aelia  Sentia ;  thus  Mommsen 
(Staatsr.  3,  626)  is  inclined  to  put  it  back  to  the  end  of  the  free  republic 
(cf.  Schneider,  Zeitschr.  d.  Sav.  Stiftung  v.  E.  A.  1884).  It  denned 
and  modified  the  status  conferred  by  such  acts  of  private  manu- 
mission as  were  probably  mentioned  in  this  paragraph,  converting 
Praetoris  tuitione  liber  into  ipso  jure  liber,  or  possessio  libertatis 
into  genuine  libertas ;  with,  however,  sundry  grievous  stints  and 
deductions.  Under  this  statute  the  freedman  was  nominally  assimi- 
lated to  Latinus  coloniarius,  the  citizen  of  a  Koman  colony  in 
Latium ;  that  is,  had  a  moiety  of  the  private  rights  composing  civitas 
Komana  or  jus  Quiritium,  possessing  commercium  without  con- 
nubium.  As  incapable  of  connubium  or  civil  marriage,  the  Latinus 
was  incapable  of  patria  potestas  over  his  children  and  of  agnatio  or 
civil  relationship.  Though  incapable  of  civil  marriage  he  was  of 
course  capable  of  gentile  marriage  (matrimonium,  uxorem  liberorum 
quaerendorum  causa  ducere)  and  of  natural  relationship  (cognatio), 
just  as  an  alien  (peregrinus),  though,  by  want  of  commercium, 
incapable  of  dominion  ex  jure  Quiritium,  was  capable  of  bonitary 
ownership  (in  bonis  habere)  under  the  jus  gentium. 

In  virtue  of  commercium,  the  Latinus  Junianus  was  capable  of 
Quiritary  ownership,  of  civil  acquisition  and  alienation  (usucapio, 
mancipatio,  in  jure  cessio),  contract  (obligatio),  and  action  (vindi- 
catio,  condictio),  like  a  Koman  citizen ;  but  in  respect  of  testamentary 
succession  his  rights  were  very  limited.  He  was  said  to  have 
testamentary  capacity  (testamenti  factio),  Ulpian,  20,  8  ;  but  this 
only  meant  that  he  could  perform  the  part  of  witness,  or  familiae 
emptor,  or  libripens  (2  §  104),  i.e.  could  assist  another  person  to 
make  a  valid  will ;  not  that  he  could  take  under  a  will  either  as 
heir  or  as  legatee,  or  could  dispose  of  his  own  property  by  will, 
Ulpian,  20,  14.  At  his  death  all  his  property  belonged  to  his 
patron,  as  if  it  were  the  peculium  of  a  slave,  3  §  56.  In  fact,  as 
Justinian  says :  Licet  ut  liberi  vitam  suam  peragebant,  attamen 
ipso  ultimo  spiritu  simul  animam  atque  libertatem  amittebant, 
Inst.  3,  7,  4.  '  Though  free  in  their  lifetime,  the  same  moment 
that  deprived  them  of  life  reduced  them  to  the  condition  of  slaves.' 

Although  in  the  person  of  libertus  himself,  Latinitas  retained 
many  traces  of  its  servile  origin,  yet  it  was  not  so  for  his  posterity ; 
these  disabilities  only  attached  to  the  original  freedman,  not  to  his 
issue.  The  son  of  the  dediticius  or  Latinus  Junianus,  though 
reduced  to  absolute  penury  by  the  confiscation  of  the  parental 
property  to  the  patron,  began,  and  continued,  the  world  with 
the  ordinary  capacities,  respectively,  of  peregrinus  and  Latinus 
coloniarius,  and  was  under  no  legal  obligations  to  the  patron  of  his 
father. 


DE  PERSONIS 


[i.  §§  28-35. 


Long  before  the  time  of  Gaius,  Latinitas  or  Latium  had  only 
a  juristic,  not  an  ethnographic  signification.  Cf.  §  79.  Soon  after 
the  Social  War  (B.C.  91)  all  Italy  received  the  ci vitas  Komana. 
Originally  Gallia  Cispadana  (Southern  Lombardy)  had  civitas 
Komana,  while  Gallia  Transpadana  (Northern  Lombardy)  had  only 
Latinitas,  but  Gallia  Transpadana  afterwards  obtained  civitas. 
Latinitas  was  a  definite  juristic  conception,  and  Latin  status  was 
conferred  as  a  boon  on  many  provincial  towns  and  districts  that  had 
no  connexion  with  Latium  or  its  races.  Vitellius  is  carped  at  by 
Tacitus  for  his  lavish  grants  of  Latinity  (Latium  vulgo  dilargiri, 
Hist.  3,  55).  Hadrian  made  many  similar  grants  (Latium  multis 
civitatibus  dedit,  Spartian,  Had.  21),  and  Vespasian  conferred  Latin 
rights  on  the  whole  of  Spain,  Pliny,  Hist.  Nat.  3,  4.  See  §  131 
Comm. 


[QVIBVS  MODIS  LATINI  AD  civi- 

TATEAf  KOMANAJf  PEEVENIANT.] 

§  28.  Latini  uero  multis 
modis  ad  ciuitatem  Romanam 
perueniunt. 

§  29.  Statim  enim  ex  lege 
Aelia  Sentia  minores  triginta 
annorum  manumissi  et  Latini 
facti  si  uxores  duxerint  uel 
clues  Romanas  uel  Latinas  co- 
loniarias  uel  eiusdem  condi- 
cionis,  cuius  et  ipsi  essent,  idque 
testati  fuerint  adhibitis  non 
minus  quam  septem  testibus 
ciuibus  Romania  puberibus,  et 
filium  procreauerint,  cum  is 
films  anniculus  esse  coeperit, 
datur  eis  potestas  per  earn 
legem  adire  praetorem  uel  in 
prouinciis  praesidem  prouinciae, 
et  adprobare  se  ex  lege  Aelia 
Sentia  uxorem  duxisse  et  ex  ea 
filium  anniculum  habere  ;  et  si 
is  apud  quern  causa  probata 
est  id  ita  esse  pronuntiauerit, 
tune  et  ipse  Latinus  et  uxor 
eius,  si  et  ipsa  (eiusdem  con- 
dicionis  sit,  etfilius,  si  et  ipse) 
eiusdem  condicionis  sit,  ciues 
Roman!  esse  iubentur. 

Ulp.3,3. 


MODES  BY  WHICH  LATIN  FREEDMEN 
BECOME    ROMAN    CITIZENS. 

§28.  Latins  have  many  avenues 
to  the  Roman  citizenship. 

§  29.  For  instance,  the  lex  Aelia 
Sentia  enacts  that  when  a  slave 
below  the  age  of  thirty  becomes 
by  manumission  a  Latin,  if  he 
take  to  himself  as  wife  a  citizen  of 
Rome,  or  a  Latin  colonist,  or  a 
freedwoman  of  his  own  condition, 
and  thereof  procure  attestation  by 
not  less  than  seven  witnesses, 
citizens  of  Rome  above  the  age  of 
puberty,  and  begets  a  son,  on  the 
latter  attaining  the  age  of  a  year, 
he  is  entitled  to  apply  to  the 
praetor,  or,  if  he  reside  in  a  pro- 
vince, to  the  president  of  the 
province,  and  to  prove  that  he 
has  married  a  wife  in  accordance 
with  the  lex  Aelia  Sentia,  and 
has  had  by  her  a  son  who  has 
completed  the  first  year  of  his  age : 
and  thereupon  if  the  magistrate 
to  whom  the  proof  is  submitted 
pronounce  the  truth  of  the  de- 
claration, that  Latin  and  his  wife, 
if  she  is  of  the  same  condition, 
and  their  son,  if  he  is  of  the  same 
condition,  are  declared  by  the 
statute  to  be  Roman  citizens. 


I.  §§  28-35.]      Q.  M.  LATINI  AD  CIVITATEM  R.  P.          29 


§  30.  Ideo  autem  in  huius 
persona  adiecimus  '  si  et  ipse 
eiusdem  condicionis  sit,'  quia 
si  uxor  Latini  ciuis  Romana 
est,  qui  ex  ea  nascitur,  ex  nouo 
senatusconsulto,  quod  auctore 
diuo  Hadriano  factum  est,  ciuis 
Romanus  nascitur. 

Cf.  §  80  ;  Ulp.  1.  c. 

§  31.  Hoc  tamen  ius  adi- 
piscendae  ciuitatis  Romanae 
etiamsi  soft  minores  triginta 
annorum  manumissi  et  Latini 
facti  ex  lege  Aelia  Sentia  habue- 
runt,  tamen  postea  senatuscon- 
sulto, quod  Pegaso  et  Pusione 
consulibus  factum  est,  etiam 
maioribus  triginta  annorum 
manu missis  Latinis  factis  con- 
cess  um  est. 

§  32.  Ceterum  etiamsi  ante 
decesserit  Latinus,  quam  anni- 
culi  filii  causam  probauerit, 
potest  mater  eius  causam  pro- 
bare,  et  sic  et  ipsa  fiet  ciuis 

Romana,  si  Latina  fuerit 1 

—  permissum 1 — <?ui- 

busdam 1  ipse  filius 

ciuis  Romanus  sit,  quia  ex  ciue 
Romana  matre  natus  est,  tamen 
debet  causam  probare  ut  suus 
heres  patri  fiat. 


§  32  a.  (quae)  uero  diximus 
de  filio  annicul(o,  eadem  et  de 
filia  annicula)  dicta  intelle- 


gemus. 


§326. 


id 


est  fiunt  ciues  Romani,  si 
Romae  inter  uigiles  sex  annis 
militauerint.  postea  dicitur 
factum  esse  senatusconsultum, 
quo  data  est  illis  ciuitas 


§  30.  The  reason  why  I  added, 
when  I  mentioned  the  son,  if  of 
the  same  condition,  was  this,  that 
if  the  wife  of  the  Latin  is  a  citizen 
of  Rome,  the  son,  in  virtue  of  the 
recent  senatusconsult  made  on 
the  motion  of  the  late  Emperor 
Hadrian,  is  a  citizen  of  Rome 
from  the  date  of  his  birth. 

§  31.  This  capacity  of  acquiring 
Roman  citizenship,  though  by 
the  lex  Aelia  Sentia  exclusively 
granted  to  those  under  thirty 
years  of  age  who  had  become 
Latins  by  this  statute,  by  a  sub- 
sequent senatusconsult,  made  in 
the  consulship  of  Pegasus  and 
Pusio,  was  extended  to  all  freed- 
men  who  acquire  the  status  of 
Latins,  even  though  thirty  years 
old  when  manumitted. 

§  32.  If  the  Latin  die  before 
proof  of  his  son's  attaining  the 
age  of  a  year  the  mother  may 
prove  his  condition,  and  there- 
upon both  she  and  her  son,  if  she 
be  a  Latin,  become  citizens  of 
Rome.  And  if  the  mother  fails 
to  prove  it,  the  tutors  of  the  son 
may  do  so  or  the  son  himself 
when  he  has  attained  the  age  of 
puberty.  If  the  son  himself  is  a 
Roman  citizen  owing  to  the  fact 
of  his  having  been  born  of  a 
Roman  citizen  mother,  he  must 
nevertheless  prove  his  condition 
in  order  to  make  himself  his 
father's  self  successor. 

§  32  a.  What  has  been  said 
about  a  son  of  a  year  old,  must 
be  understood  to  be  equally  ap- 
plicable to  a  daughter  of  that 
age. 

§  32  &.  By  the  Visellian  statute 
those  either  under  or  over  thirty 
years  of  age,  who  when  manu- 
mitted become  Latins,  acquire  the 
jus  quiritium,  i.  e.  become  Roman 
citizens,  if  they  have  served  for 
six  years  in  the  guards  at  Rome. 


30 


DE  PERSONIS 


[i.  §§  28-35. 


Romana,  si  triennium  militiae 
expleuerint.  Ulp.  3, 5. 


§  32  c.  Item  edicto  Claudii 
Latini  ius  Quiritium  conse- 
cuntur,  si  nauem  marinam  ae- 
dificauerint,  quae  non  minus 
quam  decem  milia  modiomm 
frumenti  capiat,  eaque  nauis 
uel  quae  in  eius  locum  sub- 
stituta  stt  sex  annis  frumen- 
tum  Romam  portauerit. 

Ulp.  3, 6. 

§  33.  Praeterea  a  .ZVerone 
constitutum  est  ut  si  Latinus 
qui  patrimonium  sestertium  cc 
m  ilium  plurisue  habebit  in 
urbe  Roma  donmm  aedifica- 
uerit,  in  quam  non  minus  quam 
partem  dimidiam  patrimonii 
sui  inpenderit,  ius  Quiritium 
consequatur. 

Tac.Ann.15,43;  Ulp.  3,1. 

§  34.  Denique  Traianus  con- 
stituit  ut  si  Latinus  in  urbe 
trienmo  pistrinum  exercuerit, 
in  quo  in  dies  singulos  non 
minus  quam  centenos  modios 
frumenti  ^)inseret,  ad  ius  Quiri- 
tium peruenia£.  Ulp.  1.  c. 

§35.   . -| 1 1 

sequi 1  maiores    tngmta 

annorum  manumissi  et  Latini 
facti 1 ius  Quiri- 
tium consequi £n|ginta 

annorum  manumittant 1 

1  manumissus     uindicta 

aut  censu  aut  testamento 

ciuis  Romanus] libertus 

fit  qui  euro,  iterauerit.  ergo  si 
seruus  in  |  bonis  tuis,  ex  iure 
Quiritium  meus  erit,  Latinus 
quidem  a  te  solo  fieri  potest, 
iterari  autem  a  me,  non  etiam 
a  te  potest,  et  eo  modo  meus 
libertus  fit.  sed  et  ceteris  modis 


A  subsequent  senatusconsultum 
is  said  to  have  been  passed,  by 
which  Roman  citizenship  was  con- 
ferred on  Latins,  who  completed 
three  years'  active  military  service. 
§  32  c.  Similarly  by  an  edict  of 
Claudius  Latins  acquire  the  right 
of  citizenship,  if  they  build  a  ship 
which  holds  10,000  modii  of  corn, 
and  this  ship  or  one  substituted 
for  it  imports  corn  to  Rome  for 
six  years. 


§33.  Nero  further  enacted  that 
if  a  Latin  having  property  worth 
200,000  sesterces  or  more,  build 
a  house  at  Rome  on  which  he  ex- 
pends not  less  than  half  his  pro- 
perty, he  shall  acquire  the  right 
of  citizenship. 


§34.  Lastly,  Trajan  enacted  that 
if  a  Latin  carry  on  the  business  of 
miller  in  Rome  for  three  years, 
and  grinds  each  day  not  less  than 
a  "hundred  measures  of  wheat,  he 
shall  attain  Roman  citizenship. 

§  35.  Slaves  who  become  Latins 
either  because  they  are  under 
thirty  at  the  time  of  their  manu- 
mission, or  having  attained  that 
age  because  they  are  informally 
manumitted,  may  acquire  Roman 
citizenship  by  re-manumission  in 
one  of  the  three  legal  forms,  and 
they  are  thereby  made  freedmen 
of  their  re-manumitter.  If  a  slave 
is  the  bonitary  property  of  one 
person  and  the  quiritary  property 
of  another  he  can  be  made  a  Latin 
by  his  bonitary  owner,  but  his 
re-manumission  must  be  the  act 
of  his  quiritary  owner,  and  even 
if  he  acquires  citizenship  in  other 


I.  §§  28-35.]      Q.  M.  LATINI  AD  CIVITATEM  R.  P.          31 

ius  Quiritium  consecutus  meus  ways  he  becomes  the  freedman  of 

libertus    fit.     bonorum    autem  his  quiritary  owner.    The  praetor, 

quae -,  cum  is  morietur,  however,    invariably    gives    the 

reliquerit  tibi  possessio  datur,  bonitary  owner  possession  of  the 

quocumque  modo  ius  Quiritium  inheritance  of  such  freedman.    A 

fuerit  consecutus.    quodsi  cuius  slave  in  whom  his  owner  has  both 

et  in  bonis  et  ex  iure  Quiritium  *??*?*  and  q^tary  property, 

.,  .  r        j  •  if  twice  manumitted  by  his  owner, 

sit  manumissus,  ab  eodem  sci-  ire  b    the  ^  manu. 

licet  et  Latinus  fieri  potest  et     miiion4the  Latin  statuSj  and  by 
ius  Quiritium  consequi.  the  second  Koman  citizenship. 

Ulp.  3, 1-4. 

§  29.  This  enactment  is  stated  by  Ulpian  to  belong  to  the  lex 
Junia  (Ulp.  3,  3),  cf.  §  18,  comm. 

Pronuntiaverit.  The  decision  (sententia)  of  the  judex  in  a  judicium 
ordinarium  was  either  condemnatio  or  absolutio  of  the  defendant. 
In  actions  in  which  the  case  was  left  to  the  arbitrium  of  a  judex 
this  was  apparently  preceded  by  pronuntiatio,  a  declaration  of  the 
rights  of  the  parties.  This  appears  from  the  following,  among 
other  passages:  Sed  et  si  fundum  vindicem  meum  esse,  tuque 
confessus  sis,  perinde  teneberis  atque  si  dominii  mei  fundum  esse 
pronuntiatum  esset,  Dig.  42,  2,  6,  2.  Si  quum  de  hereditate  inter 
me  et  te  controversia  esset,  juravero  hereditatem  meam  esse,  id 
consequi  debeo  quod  haberem  si  secundum  me  de  hereditate  pro- 
nuntiatum esset,  Dig.  12,  2,  10,  3.  When  the  pronuntiatio  was  for 
the  plaintiff,  if  the  defendant  obeyed  the  arbitrium  or  provisional 
order  of  the  judex  by  making  restitution,  there  was  no  subsequent 
condemnatio.  Cf.  4  §  49.  In  the  form  of  real  action,  called  a  prae- 
judicium,  that  is,  a  preliminary  issue  of  fact,  the  pronuntiatio  formed 
the  whole  result  of  the  trial,  and  was  not  followed  by  sententia. 
Similarly,  when  a  Latinus  laid  his  claim  of  Eoman  citizenship 
before  the  praetor  under  this  enactment  of  the  lex  Aelia  Sentia,  the 
result  of  the  extraordinaria  cognitio  of  the  praetor  was  merely 
a  pronuntiatio  without  any  subsequent  decretum. 

§  31.  Pegasus  and  Pusius  were  consuls  in  the  reign  of  Vespasian. 
Inst.  2,  23,  5. 

§  32  &-§  35.  For  references  to  the  Visellian  law  cf.  Cod.  9,  21 
and  31.  It  was  probably  passed  A.D.  24,  when  Serv.  Cornelius 
Cethegus  and  L.  Visellius  Varro  were  consuls  (but  see  Mommsen, 
Staatsr.  3,  424).  Besides  the  method  provided  by  the  lex  Aelia 
Sentia,  and  by  the  Senatusconsultum  mentioned  in  §  31,  Latinus  or 
Latina  might  attain  the  Eoman  citizenship  under  the  following  con- 
ditions : — 

1.  By  erroris  causae  probatio,  i.e.  if  Latinus  marry  Peregrina, 
believing  her  to  be  Latina  or  Civis,  §  70  ;  or  Latina  marry  Pere- 


32  DE  PERSONIS  [T.  §§  28-35. 

grinus,  believing  him  to  be  Latinus,  §  69  ;  or  if  Civis,  believing 
himself  to  be  Latinus  or  Peregrinus,  marry  Latina,  §71;  or  if  Civis 
marry  Peregrinus,  believing  him  to  be  Civis  or  Latinus  ;  or  if  Civis 
marry  Latina  or  Peregrina,  believing  her  to  be  Civis  Romana,  §  67  ; 
on  birth  of  a  child  and  on  proof  of  this  mistake,  the  Latinus  or 
Latina  and  their  offspring  acquire  the  citizenship. 

2.  By  magistracy  in  a  Latin  colony  Latinus  becomes  Civis  Ro- 
manus,  §§  95,  96. 

3.  By  re-manumission  (iteratio),  i.e.  on  slaves  under  thirty  when 
manumitted  acquiring  Latinity  by  one   of  the   private   modes   of 
manumission,    a   subsequent    manumission   by   one   of  the   public 
modes,  vindicta,  censu,  or  testamento,  converted  them  from  Latini 
into  Gives,  §  35,  and  Ulp.  3,  4. 

4.  Under  the  lex  Visellia  above  mentioned  by  six  years'  service 
in  the  Eoman  guards  (si  inter  vigiles  Komae  sex  annos  militaverit, 
Ulp.   3,   5).     A  decree  of  the  senate  made  three  years'  service  a 
sufficient  title,  §  32  &.     Compare  the  provision  of  13  Geo.  II,  c.  3, 
whereby  'every  foreign  seaman  who  in  time  of  war  serves  two  years 
on  board  an  English  ship,  and  all  foreign  protestants  serving  two 
years  in  a  military  capacity  in  the  American  colonies,  are  naturalized. 

5.  Under  a  constitution  of  Nero  by  building  a  house  in  Eome 
(aedificio,  Ulp.  3,  1),  §  33. 

6.  Under  an  edict  of  Claudius  by  building  a  ship  of  10,000  modii 
and  importing  corn  to  Kome  for  six  years,  §  32  c,  Sueton.  Claud., 
Ulp.   3,  6.      Compare  the  English  law  by  which  all  foreign  pro- 
testants employed  three  years  in  the  whale  fishery  are  naturalized, 
except  as  to  capacity  for  public  office. 

7.  Under  a  constitution  of  Trajan  by  building  a  mill  and  bake- 
house for  the  supply  of  Rome  (pistrino,  Ulp.  3,  1),  §  34. 

8.  By  bearing  three  children,  Ulp.  3,  1. 

9.  By  imperial  grant  (beneficio  principali,  Ulp.  3,  2).     This  and 
the  previous   mode  of  acquiring   citizenship    were    perhaps   men- 
tioned by  Gaius  at  the  beginning  of  §  35. 

Civitas  Romana  and  Jus  Quiritium  are  synonymous,  but  the 
former  term  was  always  used  when  citizenship  was  conferred  on 
a  Peregrinus,  the  latter  generally  when  it  was  conferred  on  Latinus 
Junianus :  e.  g.  Quare  rogo,  des  ei  civitatem,  est  enim  peregrinae 
conditionis,  manumissus  a  peregrina.  .  .  .  Idem  rogo,  des  ius 
Quiritium  libertis  Antoniae  Maximillae  .  .  .  quod  a  te,  petente 
patrona,  peto,  Pliny  to  Trajan,  10,  4.  Ago  gratias,  domine,  quod 
et  ius  Quiritium  libertis  necessariae  mihi  feminae  et  civitatem 
Romanam  Harpocrati,  iatraliptae  meo,  sine  mora  indulsisti,  ibid. 
10,  5.  Civitas  Romana,  however,  was  sometimes  used  in  speaking 
of  the  enfranchisement  of  Latinus,  as  we  see  from  §  28. 


I.  §§  36-41.]  QVIBVS  MANVMITTERE  NON  LICET.          33 


§  36.    |  Non  tamen  cuicum- 

que  uolenti  manumittere  licet. 

Inst.  1,  6  pr. 

§  37.  Nam  is  qui  \  in 
fraudem  creditorum  uel  in 
fraudem  patroni  manumittit, 
nihil  agit,  quia  lex  Aelia  Sentia 
inpedit  libertatem. 

Inst.  1.  c.,Ulp.  1,15. 

§  38.  Item  eadem  lege  mi- 
nori  xx  annorum  domino  non 
aliter  manumittere  permittitur, 
quam  [si]  uindicta  apud  con- 
silium  iusta  causa  manumis- 
sionis  adprobata  [fuerit]. 

Inst.  1,  6, 4. 

§  39.  lustae  autem  causae 
manumissionis  sunt  ueluti  si 
quis  p'atrem  aut  matrem  aut 
paedagogum.  aut  conlactaneum 
manumittat.  sed  et  illae  causae, 
quas  superius  in  seruo  minore 
xxx  annorum  exposuimus,  ad 
hiinc  quoque  casum  de  quo 
loquimur  adferri  possunt.  item 
ex  diuerso  hae  causae,  quas  in 
minore  xx  annorum  domino 
rettulimus,  porrigi  possunt  et 
ad  seruum  minor  em  xxx  an- 
norum. Inst.  1,  6,  4,  5. 

§  40.  Cum  ergo  certus  modus 
manumittendi  minoribus  xx 
annorum  dominis  per  legem 
Aeliam  Sentiam  constitutus  sit, 
euenit  ut  qui  xnn  annos  aetatis 
expleuerit,  licet  testamentum 
facere  possit  et  in  eo  heredem 
sibi  instituere  legataque  relin- 
quere  possit,  tamen,  si  adhuc 
minor  sit  annorum  xx,  liberta- 
tem seruo  dare  non  possit. 

Inst.  1, 6, 7. 

§  41.  Et  quamuis  Latinum 
facere  uelit  minor  xx  annorum 
dominus,  tamen  nihilo  minus 


§  36.  Not  every  owner  who  is 
so  disposed  is  permitted  to  manu- 
mit. 

§  37.  An  owner  who  would 
defraud  his  creditors  or  his  own 
patron  by  an  intended  manumis- 
sion, attempts  in  vain  to  manumit, 
because  the  lex  Aelia  Sentia  pre- 
vents the  manumission. 

§  38.  Again,  by  a  disposition  of 
the  same  statute,  before  attaining 
twenty  years  of  age,  the  only 
process  by  which  an  owner  can 
manumit  is  fictitious  vindication, 
preceded  by  proof  of  adequate 
motive  before  the  council. 

§  39.  It  is  an  adequate  motive 
of  manumission,  if  the  father,  for 
instance,  or  mother  or  teacher  or 
foster-brother  of  the  manumitter, 
is  the  slave  to  be  manumitted. 
In  addition  to  these,  the  motives 
recently  specified  respecting  the 
slave  under  thirty  years  of  age 
may  be  alleged  when  the  manu- 
mitting owner  is  under  twenty  ; 
and,  reciprocally,  the  motives 
valid  when  the  manumitting 
owner  is  under  twenty  are  ad- 
missible when  the  manumitted 
slave  is  under  thirty. 

§  40.  As,  then,  the  lex  Aelia 
Sentiaimposes  acertain  restriction 
on  manumission  for  owners  under 
the  age  of  twenty,  it  follows  that, 
though  a  person  who  has  com- 
pleted his  fourteenth  year  is  com- 
petent to  make  a  will,  and  therein 
to  institute  an  heir  and  leave 
bequests  ;  yet,  if  he  has  not  at- 
tained the  age  of  twenty,  he  can- 
not therein  enfranchise  a  slave. 


§  41.  And  even  to  confer  the 
Latin  status,  if  he  is  under  the 
age  of  twenty,  the  owner  must 


34 


DE  PERSONIS 


[i.  §§  42-47. 


debet  apud  consilium  causam  satisfy  the  council  of  the  adequacy 
probare  et  ita  postea  inter  of  his  motive  before  he  manumits 
amicos  manumittere.  the  slave  in  the  presence  of 

witnesses. 

§  41.  Justinian,  having  first  reduced  the  age  from  20  to  17, 
or  the  beginning  of  the  eighteenth  year  (Inst.  1,  6,  7),  finally  per- 
mitted minors  to  enfranchise  by  will  as  soon  as  they  could  make 
a  valid  will,  i.e.  at  the  age  of  14  (Novella)  119,  2).  He  mentions 
that  the  lowest  class  of  freedmen  (dediticia  libertas)  had  long  been 
obsolete,  and  formally  abolished  the  second  class  (latina  libertas), 
converting  informal  modes  of  making  Latinus,  such  as  per  epistolam, 
inter  amicos,  into  modes  of  making  Civis  Komanus,  and  declaring 
the  rest  inoperative,  Cod.  7,  6.  Cf.  Moyle,  Comm.  Inst*  1 ,  5. 


DE   LEGE   FVFIA  CANINIA. 


§  42.  Praeterea  lege  Fufia 
Caninia  certus  modus  consti- 
tutus  est  in  seruis  testamento 
manumittendis.  Inst.  1,  7, 1. 

§  43.  Nam  ei  qui  plures 
quam  duos  neque  plures  quam 
decem  seruos  habebit  usque  ad 
partem  dimidiam  eiue  numeri 
manumittere  permittitur ;  ei 
uero,  qui  plures  quam  x  neque 
plures  quam  xxx  seruos  habebit 
usque  ad  tertiam  partem  eius 
numeri  manumittere  permitti- 
tur. at  ei  qui  plures  quam  xxx 
neque  plures  quam  centum 
habebit  usque  ad  partem 
quartam  potestas  manumit- 
tendi  rfatur.  nouissime  ei  qui 
plures  quam  c  nee  plures  quam 
D  habebit,  non  plures  manumit- 
tere permittitur  qua?rt  quintain 

partem;  neque  plures  { ) 

tur  :  sed  praescribit  lex,  ne  cui 
plures  manumittere  liceat  quam 
C.  quodsi  quis  unum  seruum 
omnino  aut  duos  habet,  ad  bane 
legem  non  pertinet  et  ideo 
liberamhabetpotestatern  manu- 
mittendi. 


§  42.  Moreover,  by  the  lex  Fufia 
Caninia  a  certain  limit  is  fixed  to 
the  number  of  slaves  who  can 
receive  testamentary  manumis- 
sion. 

§  43.  An  owner  who  has  more 
than  two  slaves  and  not  more 
than  ten  is  allowed  to  manumit 
as  many  as  half  that  number  ;  he 
who  was  more  than  ten  and  not 
more  than  thirty  is  allowed  to 
manumit  a  third  of  that  number ; 
he  who  has  more  than  thirty 
and  not  more  than  a  hundred  is 
allowed  to  manumit  a  fourth ; 
lastly,  he  who  has  more  than  a 
hundred  and  not  more  than  five 
hundred  is  allowed  to  manumit 
a  fifth :  and,  however  many  a  man 
possesses,  he  is  never  allowed  to 
manumit  more  than  this  number, 
for  the  law  prescribes  that  no  one 
shall  manumit  more  than  a  hun- 
dred. On  the  other  hand,  if  a 
man  has  only  one  or  only  two, 
the  law  is  not  applicable,  and  the 
owner  has  unrestricted  power  of 
manumission. 


I.  §§  42-47.]         DE  LEGE  FVFIA  CANINA 


35 


§  44.  Ac  ne  ad  eos  quidem 
omnino  haec  lex  pertinet  qui 
sine  testam#ft£o  manumittuni. 
itaque  licet  iis,  qui  uindicta  aut 
censu  aut  inter  amicos  inanu- 
mittunt,  totam  fainiliam  libe- 
rare,  scilicet  si  alia  causa  non. 
inpediat  libertatem. 

§  46.  Nam  et  si  iestamento 
scriptis  in  orbem  seruis  libertas 
data  sit,  quia  nullus  ordo  manu- 
missionis  inuenitur,  nulli  liberi 
erunt,  quia  lex  Fuh'a  Caninia 
quae  in  fraudem  eius  facta  sint 
rescindit.  sunt  etiam  specialia 
senatusconsulta,quibus  rescissa 
sunt  ea  quae  in  fraudem  eius 
legis  excogitata  sunt. 

§  47.  In  summa  sciendum 
est,  (cum)  lege  Aelia  Sentia 
cautum  sit,  ut  creditorum  frau- 
dandorum  causa  manumissi 
liberi  non  fiant,  hoc  etiam  ad 
peregrines  pertinere  (senatus 
ita  censuit  ex  auctoritate 
Hadriani),  cetera  uero  iura  eius 
legis  ad  peregrines  non  per- 
tinere. 


§  44.  Nor  does  the  statute  apply 
to  any  but  testamentary  manu- 
mission, so  that  by  the  form 
of  vindicta  or  inscription  on 
the  censor's  register,  or  by  at- 
testation of  friends,  a  proprietor 
of  slaves  may  manumit  his  whole 
household,  provided  that  there  is 
no  other  let  or  hindrance  to  im- 
pede their  manumission. 

§  46.  If  a  testator  manumits  in 
excess  of  the  permitted  number, 
and  arranges  their  names  in  a 
circle,  as  no  order  of  manumission 
can  be  discovered,  none  of  them 
can  obtain  their  freedom,  as 
both  the  lex  Fufia  Caninia  itself 
and  certain  subsequent  decrees 
of  the  senate  declare  null  and 
void  all  dispositions  contrived 
for  the  purpose  of  eluding  the 
statute. 

§  47.  Finally,  it  is  to  be  noted 
that  the  provision  in  the  lex  Aelia 
Sentia  making  manumissions  in 
fraud  of  creditors  inoperative,  was 
extended  to  aliens  by  a  decree  of 
the  senate  passed  on  the  proposi- 
tion of  the  Emperor  Hadrian  ; 
whereas  the  remaining  disposi- 
tions of  that  statute  are  inapplic- 
able to  aliens. 


§  47.  The  lex  Fufia  Caninia,  passed  under  Augustus  (Sueton. 
Aug.  40),  to  prevent  the  degradation  of  citizenship  by  testators  abusing 
their  testamentary  right  of  manumission,  was  generally  called  the 
lex  Furia  Caninia  before  the  manuscript  of  Gaius  was  re-examined 
by  Studemund ;  it  was  abrogated  by  Justinian.  See  Inst.  1,  7. 
The  clause  of  the  lex  Aelia  Sentia  referred  to  in  the  text  was  retained 
by  Justinian.  Inst.  1,  6  pr. 


DE   HIS   QVI   SVI   VEL  ALIENI   IVEIS   SINT. 


§  48.  Sequitur  de  iure  per- 
sonarum  alia  diuisio.  nam 
quaedam  personae  sui  iuris 
sunt,  quaedam  alieno  iuri 
subiectae  sunt.  Inst.  1,  8  pr. 


§  48.  Another  division  in  the 
law  of  Persons  classifies  men  as 
either  dependent  or  independent 


D  2 


36 


DE  PERSONIS 


[i.  §§  48-54. 


§  49.  Rursus  earum  per- 
sonarum,  quae  alieno  iuri  sub- 
iectae  sunt,  aliae  in  po testate, 
aliae  in  manu,  aliae  in  mancipio 
sunt.  Inst.  1.  c. 

§  50.  Videamus  mmc  de  his 
quae  alieno  iuri  subiectae  sint ; 
{nam,}  si  cognouerimus  quae 
ist&e  personae  sint,  simul  in- 
tellegemus  quae  sui  iuris  sint. 

O  *  Til 

Inst.  1.  c. 

§  51.  Ac  prius  dispiciamus 
de  iis  qui  in  aliena  potestate 
sunt.  list.  1.  c. 

§  52.  In  potestate  itaque 
sunt  serui  dorainorum.  quae 
quidem  potestas  iuris  gentium 
est :  nam  apud  omnes  peraeque 
gentes  animaduertere  possumus 
dominis  in  seruos  uitae  necis- 
que  potestatem  esse  ;  et  quod- 
cumque  per  seruum  adquiritur, 
id  domino  adquiritur. 

Inst.  1,8, 1. 

§  53.  Sed  hoc  tempore  neque 
ciuibus  Romanis,  nee  ullis  aliis 
hominibus  qui  sub  imperio  po- 
puli  Romani  sunt,  licet  supra 
modum  et  sine  causa  in  seruos 
suos  saeuire  ;  nam  ex  constitu- 
tions imperatoris  Antonini  qui 
sine  causa  seruum  suum  occi- 
derit,  non  minus  teneri  iubetur, 
quam  qui  alienum  seruum  occi- 
derit.     sed    et   maior    quoque 
asperitas  dominorum  per  eius- 
dem    principis    constitutionem 
coercetur ;    nam    consultus    a 
quibusdam     praesidibus     pro- 
uinciarum  de  his  seruis,  qui  ad 
fana   deorum    uel    ad    statuas 
principum     confugiunt,    prae- 
cepit  ut  si  intolerabilis  uideatur 
dominorum   saeuitia   cogantur 
seruos  suos  uendere.    et  utrum- 
que  recte  fit ;  male  enim  nostro 
iure    uti    non    debemus;    qua 


§  49.  Those  who  are  dependent 
or  subject  to  a  superior,  are  either 
in  his  power,  in  his  hand,  or  in 
his  mancipation. 

§  50.  Let  us  first  explain  what 
persons  are  dependent  on  a 
superior,  and  then  we  shall  know 
what  persons  are  independent. 


§  51.  Of  persons  subject  to  a 
superior,  let  us  first  examine  who 
are  in  his  power. 

§  52.  Slaves  are  in  the  power  of 
their  proprietors,  a  power  recog- 
nized by  jus  gentium,  since  all 
nations  present  the  spectacle  of 
masters  invested  with  power  of 
life  and  death  over  slaves;  and 
(by  the  Roman  law)  the  owner 
acquires  everything  acquired  by 
the  slave. 


§  53.  But  in  the  present  day 
neither  Roman  citizens,  nor  any 
other  persons  under  the  empire 
of  the   Roman   people,  are  per- 
mitted to  indulge  in  excessive  or 
causeless  harshness  towards  their 
slaves.     By  a  constitution  of  the 
Emperor  Antoninus,  a  man  who 
kills   a    slave    of    whom   he    is 
owner,  is  as  liable  to  punishment 
as  a  man  who  kills  a  slave  of 
whom  he  is  not  owner :  and  in- 
ordinate cruelty  on  the  part  of 
owners   is    checked   by   another 
constitution   whereby  the    same 
emperor,  in  answer  to  inquiries 
from  presidents  of  provinces  con- 
cerning slaves  who  take  refuge  at 
temples  of  the  gods,  or  statues 
of  the  emperor,  commanded  that 
on  proof  of  intolerable  cruelty  a 
proprietor  should  be  compelled  to 
sell  his  slaves:    and  both  ordi- 
nances are  just,  for  we  ought  not 


I.  §§  48-54.]       DE  POTESTATE  DOMINICA  37 

ratione  et  prodigis  interdicitur  to  make  a  bad  use  of  our  law- 

bonorum  suoruin  administratio.  ful  rights,  a  principle  recognized 

Inst.  1,8, 2.  *n  the  interdiction  of  prodigals 

from  the  administration  of  their 

fortune. 

§  54.     Ceterum    cum    apud  §  54.  But  as  citizens  of  Rome 

ciues  Romanes  duplex  sit  domi-  may  have  a  double  kind  of  domi- 

nium  (nam  uel  in  bonis  uel  ex  nion,  either  bonitary  or  quiritary, 

iure  Quiritium  uel  ex  utroque  or  a  union  of  both  bonitary  and 

iure    cuiusque   seruus  esse  in-  quiritary  dominion,  a  slave  is  in 

telleg^tur),  ita  demum  seruum  the  power  of  an  owner  who  has 

in  potestate  domini  esse  dice-  bonitary  dominion  over  him,  even 

mus,  si  in  bonis  eius  sit,  etiamsi  unaccompanied     with    quiritary 

simul  ex  iure  Quiritium  eius-  dominion ;  if  an  owner  has  only 

dem  non  sit ;  narn  qui  nudrfm  ^are  q^itary  dominion  he  is  not 

ius  Quiritium  in  seruo  habet,  d             to  have  the  slave  m  hls 
is  potestatem  habere  non  in- 
tellegitur. 


§§  52,  53.  The  condition  of  the  slave  was  at  its  worst  in  the  golden 
period  of  Roman  history.  As  soon  as  Rome  found  her  power 
irresistible  she  proceeded  to  conquer  the  world,  and  each  stage  of 
conquest  was  the  reduction  of  a  vast  portion  of  mankind  to  slavery. 
30,000  Tarentines  were  sent  as  slaves  to  Rome  by  Fabius  Cunctator, 
the  captor  of  Tarentum  ;  150,000  Epirots  by  Paulus  Aemilius,  the 
subjugator  of  Epirus.  Julius  Caesar  retrieved  his  shattered  fortunes 
by  enormous  operations  in  the  slave  market  during  his  campaign 
in  Gaul.  Thus,  unfortunately  for  the  slave,  the  slave  market  was 
continually  glutted  and  slave  life  was  cheap.  The  condition  of  the 
slave  gradually  but  slowly  improved  under  the  emperors.  The 
killing  of  the  slave  of  another  was  not  an  offence  under  the  lex 
Cornelia  de  sicariis  itself,  but  by  the  interpretation  of  later  times 
it  was  brought  under  this  law.  A  lex  Petronia  of  uncertain  date, 
but  which  must  have  been  passed  before  the  destruction  of  Pompeii, 
A.  D.  79,  being  mentioned  in  an  inscription  found  there,  required 
a  slave -owner  to  obtain  the  permission  of  a  magistrate  before 
exposing  a  slave  to  be  torn  to  pieces  by  wild  beasts,  and  only 
allowed  such  permission  to  be  granted  for  some  offence  committed 
by  the  slave,  Dig.  48,  8,  11,  2.  Claudius  prohibited  a  master 
killing  his  own  slaves  who  fell  sick,  and  enacted  that  the  exposure 
of  a  slave  to  perish  in  his  sickness  should  operate  as  a  manumission, 
conferring  Latinitas,  Sueton.  Claud.  25,  Cod.  7,  6,  3.  Hadrian  is 
said  to  have  deprived  proprietors  of  the  power  of  putting  slaves 
to  death  without  a  judicial  sentence,  Spartian,  Had.  18  (but  see  on 
this  Mommsen,  Strafr.,  p.  617,  n.  2).  Antoninus  Pius  declared  a 


38  t)E  PERSONIS  [i.  §§  48-54. 

master  who  killed  his  own  slave  to  be  responsible  in  the  same  way 
as  if  he  had  killed  the  slave  of  another,  cf.  §  53,  3  §  213,  i.  e.  guilty 
of  murder,  and  subject  to  the  penalty  of  the  lex  Cornelia  de  sicariis. 
We  read  in  Justinian's  Digest :  Qui  hominem  occiderit  punitur  non 
habita  differentia  cujus  conditionis  hominem  interemit,  Dig.  48,  8,  2. 
The  punishment  was  generally  capital,  Dig.  48,  8,  3,  5.  It  is  to  be 
remembered,  however,  that  none  of  these  laws  deprive  the  master 
of  the  right  of  punishing  his  slaves  himself  for  domestic  offences. 
Hadrian  prohibited  the  castration  of  a  slave,  consenting  or  not  con- 
senting, under  penalty  of  death,  Dig-  48,  8,  4,  2.  Antoninus  Pius  also 
protected  slaves  against  cruelty  and  personal  violation,  Dig.  1,  6,  2, 
obliging  the  master,  as  we  see  by  the  text,  to  manumit  them  on 
account  of  his  maltreatment.  The  Digest,  1,  6,  1,  quoting  §  53, 
after  sine  causa,  interpolates,  legibus  cognita,  thus  placing  slaves 
under  the  protection  of  the  law,  and  almost  recognizing  in  slaves 
some  of  the  primordial  rights  of  humanity,  except  that,  as  already 
observed,  obligation  does  not  necessarily  imply  a  correlative  right. 
Koman  law  to  the  end,  unlike  other  legislations  which  have  recog- 
nized forms  of  slavery,  refused  to  admit  any  rights  in  the  slave. 
Florentinus,  however,  not  long  after  the  time  of  Gaius,  admitted 
that  slavery,  though  an  institution  of  jus  gentium,  was  a  violation 
of  the  law  of  nature.  Servitus  est  canstitutio  juris  gentium  qua 
quis  domino  alieno  contra  naturam  subicitur,  Dig.  1,  5,  4.  Ulpian 
says  the  same :  Quod  attinet  ad  jus  civile,  servi  pro  nullis  habentur, 
non  tamen  et  jure  naturali ;  quia  quod  ad  jus  naturale  attinet,  omnes 
homines  aequales  sunt,  Dig.  50,  17,  32.  'Before  the  Civil  law  a 
slave  is  nothing,  but  not  before  the  Natural  law ;  for  in  the  eye  of 
Natural  law  all  men  are  equal.'  The  belief  in  a  Natural  law,  more 
venerable  than  any  Civil  law,  was  very  prevalent  in  the  ancient 
world,  and  one  of  the  principal  contributions  of  Philosophy  to 
civilization. 

The  absolute  privation  of  all  rights  was  sometimes  expressed  by 
saying  that  a  slave  has  no  persona,  caput,  or  status :  e.  g.  Servos 
quasi  nee  personam  habentes,  Nov.  Theod.  1 7.  Servus  manumissus 
capite  non  minuitur  quia  nullum  caput  habet,  Inst.  1,  16,  4.  Cum 
servus  manumittitur,  quia  servile  caput  nullum  jus  habet,  ideo  nee 
minui  potest,  eo  die  enim  incipit  statum  habere,  Dig.  4,  5,  4.  The 
word  '  persona,'  however,  is  sometimes  applied  to  slaves ;  e.  g.  in 
personam  servilem  nulla  cadit  obligatio,  Dig.  50,  17,  22.  So  is  caput 
in  the  last  but  one  of  the  above-quoted  passages. 

But  though  a  Koman  slave  was  incapable  of  being  invested  with 
rights  for  himself,  yet  he  often  filled  positions  of  considerable 
importance  both  in  public  and  private  life  and  was  allowed  by  his 
owner  to  hold  a  considerable  peculium.  It  was  because  slaves  were 


i.  §  55.]  DE  PATRIA  POTESTATE  39 

ordinarily  employed  as  procurators  in  commercial  transactions, 
that  Eoman  law  failed  to  develop  the  principle  of  contractual 
agency,  as  it  is  understood  in  modern  systems  of  jurisprudence. 

DE    PATEIA   POTESTATE. 

§  55.  Item  inpotestatenostra  §  55.  Again,  a  man  has  power 

sunt  liberi   nostri  quos    iustis  over  his  own  children  begotten 

nuptiisprocreauimus.    quodius  i*  civil  wedlock,  a  right  peculiar 

premium  ciuium  Romanorum  to  citizens  of  Borne,  for  there  is 

estf  fere  enim  nulli  alii  sunt  f  ff el?  any  other  nation  where 

r ao'.                .        ,          .       fll.  fathers  are   invested  with   such 

homines    qu*    talem    m    nhos  r  over  their  ^^  ag  afc 

suos  habent  potestatem  qualem  £Qme    and  ^  the  kte  Emperor 

nos     habemus;     idque    dinus  Hadrian  deciared  in  the  edict  he 

Hadnanws    edicto     quod    pro-  published  respecting  certain  peti- 

posuit  de  his,  qui  sibi  liberisque  tioners  for  a  grant  of  Roman  citi- 

suis  ab  eo  ciuitatem  Romanam  zenship  to  themselves  and  their 

petebant,  significauit.     nee  me  children ;    though   I  am   aware 

praeterit     Galatarum     gentem  that  among  the  Galatians  parents 

credere  in  potestate  parentum  are    invested   with    power   over 

liberos  esse.  Inst.  l}9pr.  their  children. 

§  55.  The  most  peculiar  portion  of  the  Roman  law  of  status  is 
that  which  refers  to  patria  potestas,  or  the  relation  of  paterfamilias 
to  filiusfamilias.  Patria  potestas  was  founded  on  consuetudinary 
law  (cum  jus  potestatis  moribus  sit  receptum,  Dig.  1,  6,  8),  and 
may  be  considered  under  two  heads,  (1)  as  regarding  the  person 
of  the  son,  (2)  as  regarding  proprietary  rights  acquirable  by 
the  son. 

1.  Over  the  person  of  the  child  the  father  had  originally  a  power 
of  life  and  death.  Patribus  jus  vitae  in  liberos  necisque  potestas 
olim  erat  permissa,  Cod.  8,  47,  10.  So  the  lex  Pompeia  de  parri- 
cidiis,  enumerating  the  persons  who  could  be  guilty  of  parricide,  or 
the  murder  of  a  blood  relation,  omits  the  father,  Dig.  48,  9.  Com- 
pare also  the  formula  of  Adrqgatio,  §§  97-107,  commentary.  But  in 
later  times  this  power  was  withdrawn.  Hadrian  condemned  to 
deportation  a  father  who  in  the  hunting-field  killed  his  son  who 
had  committed  adultery  with  his  stepmother,  Dig.  48,  9,  5.  Con- 
stantine,  A.D.  319,  included  killing  by  a  father  under  the  crime  of 
parricide,  Cod.  9,  17.  Fathers  retained  the  power  of  moderate 
chastisement,  but  severe  punishment  could  only  be  inflicted  by  the 
magistrate,  Cod.  8,  46,  3.  Si  atrocitas  facti  jus  domesticae  emen- 
dationis  excedat,  placet  enormis  delicti  reos  dedi  judicum  notioni, 
Cod.  9,  15.  Trajan  compelled  a  father  to  emancipate  a  son  whom 
he  treated  with  inhumanity,  Dig.  37,  12,  5.  It  was  originally  at 


40  DE  PERSONIS  [i.  §  55. 

the  option  of  the  parent  whether  he  would  rear  an  infant  or  expose 
it  to  perish,  but  in  later  times  such  exposure  was  unlawful,  as 
was  declared  by  Valentinian,  Valens,  and  Gratian,  A.  D.  374,  Cod. 
8,  51,  2. 

Originally  also  parents  had  the  power  of  selling  (mancipandi) 
their  children  into  bondage,  thus  producing  a  capitis  minutio,  or 
degradation  of  status.  The  patriarchs  of  the  Roman  race  may 
perhaps  have  been  slave-dealers  who,  like  some  savage  tribes  in 
Africa  and  elsewhere,  trafficked  in  the  bodies  of  their  own  children, 
but  we  must  note  that  the  bondage  into  which  a  Roman  father  sold 
his  children  was,  at  least  at  the  time  at  which  this  institution  is 
known  to  us,  a  limited  degree  of  subjection  :  the  mancipation,  which 
if  made  three  times  released  a  son  from  his  father's  power  according 
to  a  provision  of  the  Twelve  Tables,  could  only  be  made  to  another 
Roman  citizen,  and  the  bondsman  continued  to  be  liber  and  civis. 
And  this  power  also  was  withdrawn  in  more  civilized  times.  A 
law  of  Diocletian  and  Maximian,  A.D.  294,  declares  the  sale,  dona- 
tion, pledging  of  children  to  be  unlawful,  Cod.  4,  43,  1.  A  rescript 
of  one  of  the  Antonines  commences  in  the  following  terms,  Cod. 
7,  16,  1 :  'You  are  guilty,  by  your  own  admission,  of  an  unlawful 
and  disgraceful  act,  as  you  state  that  you  sold  your  freeborn 
children.'  Justinian  increased  the  penalties  of  the  law  against 
creditors  who  took  possession  of  the  freeborn  child  of  a  debtor 
as  a  security  for  a  debt.  He  enacted  that  the  creditor  should 
forfeit  the  debt,  should  pay  an  equal  sum  to  the  child  or  parent, 
and  in  addition  should  undergo  corporal  punishment,  Novella, 
134,  7.  In  the  time  of  Gaius,  the  only  genuine  sale  of  a  child  into 
bondage  was  in  the  case  of  noxal  surrender,  i.  e.  when  a  father  sued 
for  the  delict  of  a  child,  in  lieu  of  damages,  surrendered  his  delin- 
quent son  or  daughter  as  a  bondsman  (mancipium)  to  the  plaintiff, 
§  140.  The  sale  of  the  child  in  adoption  and  emancipation  was 
merely  fictitious ;  even  noxal  surrender  was  practically  obsolete 
in  the  time  of  Justinian,  by  whom  it  was  formally  abolished, 
Inst.  4,  8,  7.  Constantine,  however,  A.  D.  329,  in  cases  of  extreme 
poverty  permitted  parents  to  sell  their  children  immediately  after 
birth  (sanguinolentos),  and  this  constitution  was  retained  in  the 
code  of  Justinian,  Cod.  4,  43,  2. 

2.  In  respect  of  property,  filiusfamilias  was  capable  of  obligation 
but  not  of  right ;  he  could  be  debtor  but  not  creditor ;  in  any 
transaction  where  an  independent  person  (sui  juris)  would  have 
been  creditor,  filiusfamilias  was  merely  a  conduit-pipe  through 
which  a  right  vested  in  his  father  as  creditor  or  proprietor.  Even 
in  domestic  relations  filiusfamilias  could  only  figure  as  inferior,  not 
as  superior;  he  owed  obedience,  but  could  not  exercise  command 


I.  §  55.]  DE  PATRIA  POTESTATE  41 

(jus,  in  the  special  sense  which  it  has  in  the  phrases,  sui  juris,  alieni 
juris) ;  he  could  only  be  an  instrument  by  which  his  father  acquired 
a  right  of  command.  Thus,  filiusfamilias  had  commercium,  and 
could  take  by  mancipatio,  but  the  property  he  thus  took  vested  in 
his  father ;  he  could  make  a  valid  contract,  but  the  contractual 
right  vested  in  his  father  ;  he  had  testamentifactio,  that  is,  he  could 
be  witness,  libripens,  familiae  emptor,  but  he  could  not  make  a  will, 
for  he  had  no  property  to  leave  ;  and  if  he  took  under  a  will  as 
legatee  or  heir,  the  legacy  or  succession  vested  in  his  father:  cf.  2 
§  87,  3  §  163,  comm.  He  had  the  other  element  of  civitas,  con- 
nubium ;  that  is>  he  could  contract  a  civil  marriage  and  beget  civil 
children  ;  but  the  patria  potestas  over  these  children  vested  not  in 
the  father  but  in  the  grandfather,  and  if  the  marriage  was  accom- 
panied with  power  of  hand  (manus),  marital  power  over  the  wife, 
this  vested  not  in  the  husband  but  in  the  husband's  father.  Any 
property  which  the  son  was  allowed  by  his  father  to  manage  was 
called  his  peculium,  i.e.  was  held  on  the  same  terms  as  property 
which  a  slave  administered  by  permission  of  his  proprietor.  In 
respect  of  debts  which  he  incurred,  the  son  did  not  act  as  conduit- 
pipe,  but  (except  for  a  loan  of  money,  which  the  Sc.  Macedonianum 
made  irrecoverable)  was  liable  in  his  own  person,  Dig.  44,  7,  39. 
'  A  son  under  power  incurs  obligation  by  the  same  titles,  and  may 
be  sued  on  the  same  grounds  of  action  as  an  independent  person.' 
The  same  rule  applied  to  the  son  as  to  the  slave:  Melior  conditio 
nostra  per  servos  fieri  potest,  deterior  fieri  non  potest,  Dig.  50,  17, 
133.  'The  melioration  of  his  proprietor's  condition  is  in  the  power 
of  a  slave,  but  not  the  deterioration.' 

In  his  public  functions,  filiusfamilias  was  entirely  beyond  the 
sphere  of  patria  potestas.  Quod  ad  jus  publicum  attinet  non  sequitur 
jus  potestatis,  Dig.  36,  1,  14.  Thus,  a  son  could  act  as  praetor  or 
as  judex  in  a  suit  to  which  his  father  was  a  party.  He  could 
even  preside  as  magistrate  over  his  own  adoption  or  emancipation  : 
Si  consul  vel  praeses  filiusfamilias  sit,  posse  eum  apud  semetipsum 
vel  emancipari  vel  in  adoptionem  dari  constat,  Dig.  1,  7,  3  (which 
makes  it  doubtful  how  far  political  functions  were  suspended 
even  by  the  state  of  mancipium  or  bondage).  He  could  also 
be  appointed  guardian  (tutor),  for  guardianship  (tutela)  was  held 
to  be  a  public  function,  Dig.  1 ,  6,  9.  'A  filiusfamilias  in  his  public 
relations  is  deemed  independent,  for  instance,  as  magistrate  or  as 
guardian.' 

The  above-stated  incapacities  of  filiusfamilias  were  subject,  how- 
ever, to  certain  exceptions  and  modifications,  which  may  now  be 
briefly  considered. 

a.  In  certain  cases  filiusfamilias  had  an  anomalous  right  of  suing 


42  DE  PERSONIS  [i.  §  55. 

in  his  own  name  (suo  nomine),  i.e.  not  merely  as  procurator  or 
attorney  of  his  father,  and  even  in  opposition  to  his  father's 
wishes,  Dig.  44,  7,  9.  'A  filiusfamilias  can  only,  according  to 
Julian,  sue  in  his  own  name  for  outrage,  by  interdict  for  violent 
or  clandestine  disturbance,  for  a  deposit,  and  for  a  thing  he  has 
lent  for  use.'  These  suits,  which,  in  spite  of  the  statement  in 
the  text,  were  not  the  only,  though  perhaps  the  oldest,  actions 
maintainable  by  a  person  under  power,  deserve  a  brief  explana- 
tion. Without  the  right  to  Honour,  one  of  the  primordial 
rights  of  humanity,  a  man  is  scarcely  a  freeman,  and,  accordingly, 
this  right  vests  definitively  in  filiusfamilias,  and  does  not  again 
pass  out  of  him  to  vest  in  his  father.  Any  dishonouring  outrage, 
therefore,  gave  filiusfamilias  a  right  of  bringing  a  civil  action, 
called  actio  injuriarum,  in  his  own  name,  though  the  pater- 
familias as  a  rule  maintained  the  action  both  on  his  own  account 
and  that  of  his  son  ;  if,  however,  he  was  unable  to  do  so,  or  his 
character  was  dubious,  the  son  could  proceed  by  himself  (cf.  3  §  221, 
and  Dig.  47,  10,  17,  10,  &c.),  although  any  pecuniary  damages  that 
he  thereby  recovered,  being  in  the  nature  of  property,  were  recovered 
for  his  father.  The  son  under  power  was  recognized,  then,  as 
invested  with  a  vindictive  right,  though  not  with  a  proprietary 
right.  The  actio  injuriarum  was  one  in  bonum  et  aequum  concepta 
(compare  Dig.  47,  10,  11,  1,  and  Dig.  44,  7,  34  pr.),  that  is,  the 
terms  of  the  formula  (conceptio)  directed  the  judex  to  assess  the 
damages  not  on  any  strict  principle  of  law,  but  by  his  own. 
sense  of  natural  equity  (aequum  et  bonum),  and  this  form  may 
have  helped  to  make  the  action  maintainable  by  one  who  was 
generally  incompetent  to  sue.  The  interdict  quod  vi  aut  clam 
was  maintainable  by  filiusfamilias  on  the  same  principle  as  the 
actio  injuriarum,  being  a  means  of  vindicating  a  dishonouring 
outrage  inflicted  on  filiusfamilias  by  some  violent  disturbance  of  real 
immovable  property  in  defiance  of  his  prohibitio  or  summons  to 
stay  operations  and  let  the  matter  abide  the  result  of  a  judicial  trial. 
Cf.  4  §§  138-170,  comm.  On  the  same  principle  a  filiusfamilias 
disinherited  or  passed  over  in  the  will  of  his  mother  or  maternal 
grandfather,  as  such  disinheritance  or  pretermission  was  an  implied 
imputation  of  turpitude  or  unworthiness  and  therefore  dishonouring, 
might  without  the  consent  of  his  father  (Dig.  5,  2,  22  pr.)  vindicate 
his  honour  by  impeaching  the  will  of  inofficiositas  (immorality,  or 
want  of  natural  affection),  although  such  querela  inofficiosi  testa- 
menti,  being  an  action  having  a  right  to  property  for  its  object,  would 
not  otherwise  have  been  maintainable  by  a  filiusfamilias.  If  the 
plaintiff  filiusfamilias  could  show  that  the  disinheritance  or  omission 
was  not  due  to  his  own  demerits,  he  invalidated  the  will  by  a 


I.  §  55.]  DE  PATKIA  POTESTATE  43 

fictitious  presumption  of  the  testator's  lunacy  and  made  the  testator 
intestate  ;  and  thus  filiusfamilias  vindicated  his  own  character,  though 
whatever  share  he  recovered  in  the  intestate  succession  vested  in  his 
father.  Cf.  2  §§  152-173,  comm.  ;  Inst.  2,  18. 

The  right  of  filiusfamilias  to  sue  by  actio  commodati  or  depositi 
was  founded  on  a  different  principle.  Suppose  that  filiusfamilias 
had  borrowed  or  hired  a  thing  that  he  afterwards  lent  or  deposited  ; 
his  father,  not  being  responsible  for  his  son's  debts,  would  not  be 
interested  in  the  recovery  of  the  thing,  and  therefore  was  not 
entitled  to  sue  the  depositary  or  borrower :  the  soil,  however,  would 
be  answerable  to  the  original  lender  or  letter,  and  accordingly  was 
allowed  to  sue  in  his  own  name.  To  avoid,  however,  contravening 
the  civil  law  by  affirming  a  proprietary  right  vested  in  a  filiusfami- 
lias, he  did  not  sue  by  a  formula  in  jus  concepta,  i.  e.  of  the  form,  si 
paret  oporte,re,  'if  the  plaintiff  establish  a  right,'  but  by  a  formula 
in  factum,  of  the  form,  si  paret  factum  esse,  '  if  the  plaintiff  establish 
a  fact.'  It  is  remarkable  that  Gaius  instances  precisely  the  actio 
commodati  and  the  actio  depositi  as  having  two  forms,  one  in  jus 
and  another  in  facturA  (4  §  47) ;  and  we  may  conjecture  that  the 
latter  was  invented  to  be  used  under  these  very  circumstances  by 
filiusfamilias. 

&.  The  latter  periods  of  Eoman  law  present  a  gradual  emanci- 
pation of  filiusfamilias  by  successive  inventions  of  new  kinds  of 
peculium.  As  early  as  the  time  of  Augustus  filiusfamilias  was 
allowed  to  dispose  freely  by  will  of  his  earnings  in  military  service, 
castrense  peculium,  which  came  to  be  treated  in  all  respects  as  his 
individual  property,  except  that  till  the  time  of  Justinian  the  rules 
of  intestate  succession  did  not  apply  to  it.  Filiifamilias  in  castrensi 
peculio  vice  patrumfamiliarum  funguntur,  Dig.  4,  6,  2,  Subsequently 
to  the  time  of  Gaius,  under  Constantine  and  his  successors,  the  earn- 
ings of  filiifamilias  in  the  civil  service  of  the  State,  in  holy  orders,  in 
the  liberal  professions,  were  assimilated  to  their  earnings  in  the  army, 
and  came  to  be  called  peculium  quasi  castrense.  Further,  in  the  time 
of  Constantine,  it  was  also  established  that  whatever  came  to  the 
son  from  his  mother  or,  as  the  law  was  under  Justinian,  from  the 
maternal  line,  or  from  any  source  but  the  paternal  estate  (ex  re 
patris),  should  be  acquired  for  the  father,  and  held  by  him  only  as  a 
usufruct  or  life  estate,  while,  subject  to  this,  the  son  had  the  owner- 
ship of  it  (peculium  adventicium).  Peculium  adventicium  thus 
included  everything  acquired  by  the  son  whiph  was  not  castrense 
peculium,  nor  quasi-castrense  peculium,  nor  acquired  by  means  of 
the  father's  property  (ex  re  patris).  Only  this  latter  peculium 
derived  from  the  paternal  estate  continued,  under  the  name  of 
peculium  profecticium,  subject  to  the  old  rules,  and  belonged  in 


44 


DE  PERSONIS 


[i.  §§  56-64. 


absolute  property  to  the  father.     Cf.  2  §  87,  comm. ;  Inst.  2,  9,  1  ;  3, 
19,  6;  4,  8,  7;  3,  10,  2,  28  pr. 

The  Gallic  race,  of  which  the  Galatians  were  a  branch,  are  men- 
tioned by  Caesar  as  having  the  institution  of  patria  potestas:  Viri 
in  uxores,  sicuti  in  liberos,  vitae  necisque  habent  potestatem,  De 
Bello  Gall.  6,  19.  St.  Paul  in  his  Epistle  to  the  Galatians  may 
perhaps  allude  to  the  peculiarity  of  their  law :  '  The  heir,  as  long  as 
he  is  a  child,  differeth  nothing  from  a  servant  (slave),  though  he  be 
lord  of  all' ;  4,  1,  though  the  Apostle  seems  to  be  directly  referring 
to  the  cognate  institution  of  guardianship. 


NVPTIIS. 


§  56.  I ,1  si 

ciues  Romanas  uxores  duxerint, 
uel  etiam  Latinas  peregrinasue 
cum  quibus  conubium  habeani  ; 
cum  enim  conubium  id  etiiciat, 
ut  liberi  patris  condicionem 
sequantur,  euenit  ut  non 
(solum}  ciues  Romani  fiant, 
sed  etiam  in  potestate  patris 
sint.  Inst.  1,10  pr. 

§  57.  Unde  et  ueteranis  qui- 
busdam  concedi  solet  princi- 
palibus  constitutionibus  conu- 
bium cum  his  Latinis  pere- 
grinisue  quas  primas  post 
missionem  uxores  duxerint ;  et 
qui  exeo  matrimonio  nascuntur, 
et  ciues  Romani  et  in  potestate 
parentum  fiunt. 

§  58.  |  Non  tamen  omnes 
nobis  uxores  ducere  licet ;  \  nam 
a  quarundam  nuptiis  abstinere 
debemus  ;  Inst.  1.  c. 

§  59.  inter  eas  enim  per- 
sonas  quae  parentum  libero- 
rumue  locum  inter  se  optinent 
nuptiae  contrahi  non  possunt, 
nee  inter  eas  conubium  est, 
ueluti  inter  patrem  et  filiam, 
uel  inter  matrem  et  filium,  uel 
inter  auum  et  neptem;  et  si 


§  56.  A  Roman  citizen  contracts 
civil  wedlock  and  begets  children 
subject  to  his  power  when  he 
takes  to  wife  a  citizen  of  Rome 
or  a  Latin  or  alien  with  whom  a 
Roman  has  capacity  of  civil  wed- 
lock ;  for  as  civil  wedlock  has  the 
effect  of  giving  to  the  children  the 
paternal  condition,  they  become 
by  birth  not  only  citizens  of 
Rome,  but  also  subject  to  the 
power  of  the  father. 

§  57.  And  for  this  purpose  vete- 
rans often  obtain  by  imperial  con- 
stitution a  power  of  civil  wedlock 
with  the  first  Latin  or  alien 
woman  they  take  to  wife  after 
their  discharge  from  service,  and 
the  children  of  such  marriages 
are  born  citizens  of  Rome  and 
subject  to  paternal  power. 

§  58.  But  it  is  not  any  woman 
that  can  be  taken  to  wife,  for 
some  marriages  are  prohibited. 

§  59.  Persons  related  as  ascend- 
ent and  descendent  are  incapable 
of  lawful  marriage  or  civil  wed- 
lock, father  and  daughter,  for  in- 
stance, mother  and  son,  grand- 
father and  granddaughter  ;  and  if 
such  relations  unite,  their  unions 
are  called  incestuous  and  ne- 
farious; and  so  absolute  is  the 


I.  §§  56-64.] 


DE  NVTTIIS 


45 


tales  personae  inter  se  coierint, 
nefarias  et  incestas  nuptias 
contraxisse  dicuntur.  et  haec 
adeo  ita-  sunt,  ut  quamuis  per 
adoptionem  parentum  libero- 
rumue  loco  sibi  esse  coeperint, 
non  possint  inter  se  matrimonio 
coniungi,  in  tantum,  ut  etiam 
dissoluta  adoptione  idem  iuris 
maneat ;  itaque  earn  quae  mihi 
per  adoptionem  filiae  aut  neptis 
loco  esse  coeperit  non  potero 
uxorem  ducere,  quamuis  earn 
emancipauerim.  Inst.  1.  c. 

§  60.  Inter  eas  quoque  per- 
sonas  quae  ex  transuerso  gradu 
cognatione  iunguntur  est  quae- 
dam  similis  obseruatio,  sed  non 
tanta. 

§  61.  Sane  inter  fratrem  et 
sororem  prohibitae  sunt  nuptiae, 
siue  eodem  patre  eademque  ma- 
tre  nati  fuerint,  siue  alter utro 
eorum  :  sed  si  qua  per  adoptio- 
nem soror  mihi  esse  coeperit, 
quamdiu  quidem  constat  ado- 
ptio,  sane  inter  me  et  earn 
nuptiae  non  possunt  consis- 
tere  ;  cum  uero  per  emancipa- 
tionem  adoptio  dissoluta  sit, 
potero  earn  uxorem  ducere ; 
sed  et  si  ego  emancipatus 
fuero,  nihil  inpedimento  erit 
nuptiis. 

§  62.  Fratris  filiam  uxorem 
ducere  licet,  idque  primum  in 
usum  uenit,  cum  diuus  Claudius 
Agrippinam  fratris  sui  filiam 
uxorem  duxisset;  sororis  uero 
filiam  uxorem  ducere  non  licet, 
et  haec  ita  principalibus  co-nsti- 
tutionibus  significantur.  Item 
amitam  et  materteram  uxorem 
ducere  non  licet. 

Inst.  1,10,3-5. 

§  63.  Item  earn  quae  mihi 
quondam  socrus  aut  nurus  aut 
priuigna  aut  nouerca  fuit.  ideo 


rule  that  merely  adoptive  as- 
cendents and  descendents  are 
for  ever  prohibited  from  inter- 
marriage, and  dissolution  of  the 
adoption  does  not  dissolve  the 
prohibition  :  so  that  an  adoptive 
daughter  or  granddaughter  can- 
not be  taken  to  wife  even  after 
emancipation. 


§  60.  Collateral  relatives  also 
are  subject  to  similar  prohibi- 
tions, but  not  so  stringent. 


§61.  Brother  and  sister,  indeed, 
are  prohibited  from  intermarriage 
whether  they  are  born  of  the  same 
father  and  mother  or  have  only 
one  parent  in  common:  butthough 
an  adoptive  sister  cannot,  during 
the  subsistence  of  the  adoption, 
become  a  man's  wife,  yet  if  the 
adoption  is  dissolved  by  her 
emancipation,  or  if  the  man  is 
emancipated,  there  is  no  impedi- 
ment to  their  intermarriage. 


§  62.  A  man  may  marry  his 
brother's  daughter,  a  practice  first 
introduced  when  Claudius  married 
his  brother's  daughter  Agrippina, 
but  may  not  marry  his  sister's 
daughter,  a  distinction  laid  down 
in  imperial  constitutions,  nor  may 
he  marry  his  father's  sister  or  his 
mother's  sister. 


§  63.  He  may  not  marry  one 
who  has  been  his  wife's  mother 
or  his  son's  wife  or  his  wife's 


46 


DE  PERSONIS 


[i.  §§  56-64, 


autem  diximus  '  quondam,'  quia 
si  adhuc  constant  eae  nuptiae, 
per  quas  tails  adfinitas  quaesita 
est,  alia  ratione  mihi  nupta 
esse  non  potest,  quia  neque 
eadem  duobiis  nupta  esse  potest, 
neque  idem  duas  uxores  habere. 
Inst.  1, 10, 6. 

§  64.  Ergo  si  quis  nefarias 
atque  incestas  nuptias  con- 
traxerit,  neque  uxorem  habere 
uidetur  neque  liberos ;  itaque 
hi  qui  ex  eo  coitu  nascuntur 
matrem  quidem  habere  uiden- 
tur,  patrem  uero  non  utique: 
nee  ob  id  in  potestate  ems 
(sunt,  sed  tales}  sunt  quales 
sunt  hi  quos  mater  uulgo  con- 
cepit ;  nam  et  hi  patrem  habere 
non  intelleguntur,  cum  is  etmm 
incertus  sit ;  unde  solent  spurii 
filii  appellari,  uel  a  Graeca  uoce 
quasi  (nropabrjv  concepti,  uel 
quasi  sine  patre  filii. 

Inst.  1, 10, 12. 


daughter  or  his  father's  wife.  I 
say,  one  who  has  been  so  allied, 
because  during  the  continuance  of 
the  marriage  that  produced  the 
alliance  there  would  be  another 
impediment  to  the  union,  for  a 
man  cannot  have  two  wives  nor 
a  woman  two  husbands. 

§  64.  A  man  who  contracts  a 
nefarious  and  incestuous  marriage 
is  not  deemed  to  have  either  a 
wife  or  children ;  for  the  offspring 
of  such  a  union  are  deemed  to 
have  a  mother  but  no  father, 
and  therefore  are  not  subject  to 
paternal  power ;  resembling  chil- 
dren born  in  promiscuous  inter- 
course, who  are  deemed  to  have 
no  father,  because  their  true  father 
is  uncertain,  and  who  are  called 
bastards  either  from  the  Greek 
word  denoting  illicit  intercourse 
or  because  they  are  fatherless. 


In  any  treatise  on  the  law  of  marriage  that  we  open  we  shall 
meet  the  expression,  the  marriage  contract ;  and  this  suggests  the 
inquiry,  is  marriage  a  contract,  and,  if  so,  to  which  class  of  Roman 
contracts,  Verbal,  Literal,  Real,  Consensual,  3  §  89,  is  Roman 
marriage  to  be  referred?  Most  writers  assume  that  it  was  a  Con- 
sensual contract,  on  the  strength  of  texts  like  the  following :  Nuptias 
non  concubitus  sed  consensus  facit,  Dig.  35,  1,  15.  'Marriage  does 
not  depend  on  cohabitation,  but  on  consent.'  Ortolan,  however, 
remarks  that  consensual  contracts  could  be  formed  by  absent  con- 
tractors, Inst.  3,  22,  2,  whereas  a  marriage  could  not  be  contracted 
in  the  absence  of  the  wife,  Paul,  2,  19,  8  ;  and  shows  that,  besides 
the  consent  of  the  parties,  delivery  of  possession  of  the  wife  to  the 
husband  was  required,  from  which  he  infers  that  Roman  marriage 
was  not  a  Consensual  but  a  Real  contract.  It  is  true  that  marriage 
might  be  contracted  in  the  absence  of  the  husband ;  but  this  was 
only  under  certain  conditions,  Dig.  23,  22,  5.  'A  man  in  his 
absence  may  marry  by  letter  or  message,  provided  the  woman  is 
led  to  his  house :  a  woman  in  her  absence  cannot  marry  by  letter 
or  message,  for  the  leading  must  be  to  the  husband's  house,  as  the 
domicile  of  the  married  pair.'  And  precisely  the  same  conditions 


I.  §§  56-64]  DE  NVPTIIS  47 

were  sufficient  in  other  cases  to  constitute  delivery  of  possession, 
Dig.  41,  2,  18,  2.  'If  a  vendor  deposit  any  article  in  my  house  by 
my  order,  I  have  possession  of  it  though  I  have  never  touched 
it.'  Consensus,  then,  in  the  above-quoted  passage,  is  not  opposed 
to  delivery  of  possession,  but  to  cohabitation,  or  to  the  use  of 
certain  words  or  certain  documents,  or  to  the  solemn  and  grace- 
ful ceremonial  with  which  custom  surrounded  the  matrimonial 
union. 

Eeal  contracts,  however,  are  executory  on  one  side  and  executed 
on  the  other,  whereas  in  the  conjugal  relation  both  parties  are  on 
the  same  footing  in  respect  of  execution ;  and  we  may  ask  whether 
marriage  is  a  contract  at  all ;  whether  it  does  not  rather  fall  under 
the  opposite  category  of  alienation  or  conveyance.  Instead  of  finding 
its  analogon  in  locatio-conductio  or  societas  (consensual  contracts) 
or  pignus  or  commodatum  (real  contracts),  may  we  not  rather,  with 
Savigny,  find  it  in  transfer  of  dominion  or  other  creations  of  real 
right,  such  as  adoption,  the  concession  of  patria  potestas,  or  emanci- 
pation ?  This  seems  the  truer  view,  and  if  we  use  the  expression, 
marriage  contract,  we  must  use  the  term  contract  not  in  a  specific 
sense,  as  opposed  to  conveyance,  but  in  the  generic  sense  of 
bilateral  disposition  (as  opposed  to  unilateral  disposition,  e.g.  testa- 
tion),  a  sense  embracing  both  contract  proper  and  conveyance,  and 
extending  beyond  the  sphere  of  Property  into  the  relations  of 
domestic  life.  Contract  proper  and  conveyance,  though  generally 
contrasted  in  jurisprudence,  have  much  in  common.  If  contract 
in  its  narrower  sense  is  defined  to  be  the  concurrence  of  two 
manifestations  of  will  creating  a  jus  in  personam,  and  conveyance 
the  concurrence  of  two  manifestations  of  will  creating  a  jus  in 
rem,  the  concurrence  of  two  manifestations  of  will  creating  a  jus 
is  an  element  common  to  both  terms  of  the  comparison,  and  this 
common  element  may  be  denominated  in  a  generic  sense  a  con- 
tract. Contract  in  the  narrower  sense  may  then  be  distinguished 
as  an  obligative  contract  and  conveyance  as  a  translative  contract, 
and  the  latter  head  will  include  the  contract  of  marriage,  if  we 
continue  to  employ  this  expression. 

As  in  respect  of  property  or  dominion  we  find  in  Eoman  law  the 
distinction  of  Quiritary  and  Bonitary,  that  is,  of  civil  and  gentile, 
ownership,  so  in  respect  of  the  conjugal  relation  we  find  the  distinc- 
tion of  Roman  or  civil  marriage  (connubium,  justae  nuptiae,  justum 
matrimonium)  and  gentile  marriage  (nuptiae,  matrimonium),  of 
which  the  former  alone  was  valid  at  civil  law  (connubium  est  uxoris 
jure  ducendae  facultas,  Ulpian,  5,  3  ;  '  connubium  is  the  capacity  of 
marriage  valid  by  civil  law ')  and  capable  of  producing  patria  potestas 
and  agnatio,  though  the  latter  produced  legitimate  children  (justi 


48  DE  PERSONIS  [i.  §§  56-64. 

as  opposed  to  naturales  liberi)  and  cognatio  or  natural  relation- 
ship. 

Capacity  of  civil  marriage  (connubium)  is  (a)  absolute  and  (&) 
relative.  (a)  Only  citizens  have  the  absolute  capacity  of  civil 
marriage,  and  such  Latins  and  aliens  as  are  specially  privileged, 
§  56 :  slaves  are  incapable  both  of  civil  and  gentile  marriage. 
(6)  Capacity  of  civil  marriage  is,  however,  always  relative  to  another 
person  who  forms  the  other  party  to  the  union.  A  citizen  only 
has  connubium  with  a  citizen  or  with  such  Latins  and  aliens 
as  are  specially  privileged ;  and,  before  the  lex  Papia  Poppaea 
was  passed,  a  freeborn  citizen  (ingenuus)  had  no  connubium 
with  a  citizen  by  manumission  (libertinus).  Lege  Papia  cavetur 
omnibus  ingenuis,  praeter  senatores  eorumque  liberos  libertinam 
uxorem  habere  licere,  Dig.  23,  2,  23.  'The  lex  Papia  permits  all 
freeborn  citizens,  except  senators  and  their  children,  to  marry  freed- 
women.' 

§§  58-63.  The  prohibition  of  marriage  between  collateral  rela- 
tions, originally  perhaps  extended  as  far  as  there  were  legal  names  for 
the  relationship,  i.  e.  as  far  as  the  sixth  degree,  for  Tacitus  mentions 
that  second  cousins  were  once  incapable  of  intermarriage,  sobrinarum 
diu  ignorata  matrimonia,  Ann.  1 2, 6 ;  and  Livy  (20,  see  Hermes,  4,  372), 
in  a  fragment  discovered  by  Krueger,  expressly  says  that  marriage 
was  once  restricted  within  this  limit.  '  P.  Coelius  patricius  primus 
ad  versus  veterem  morem  intra  septimum  cognationis  gradum  duxit 
uxorem.  Ob  hoc  M.  Eutilius  plebeius  sponsam  sibi  praeripi  novo 
exemplo  nuptiarum  dicens  sedicionem  populi  concitavit  adeo,  ut 
patres  territi  in  Capitolium  perfugerent '  (cf.  Karlowa,  Rom.  Rechtsg., 
p.  175) ;  but  though  marriages  within  this  limit  may  still  have  been 
regarded  as  contrary  to  religion  (fas),  the  law  (jus)  was  gradually 
relaxed.  The  prohibition  was  subsequently  reduced  to  the  fourth 
degree,  i.  e.  to  the  intermarriage  of  first  cousins  (consobrini),  Ulpian, 
5,  6,  with  this  restriction,  however,  that  if  one  of  the  collaterals  was 
only  removed  by  one  degree  from  the  common  ancestor  (stipes  com- 
munis),  he  was  regarded  as  a  quasi  ascendent  (loco  parentis)  and 
incapable  of  intermarriage  at  any  degree :  thus,  a  man  could  not 
marry  his  brother's  or  sister's  granddaughter,  though  only  related 
in  the  fourth  degree,  Cod.  5,  4,  17.  Degrees  in  the  direct  line  were 
reckoned  by  counting  the  generations  or  births  to  which  a  person 
owed  his  descent  from  an  ancestor :  thus,  a  man  is  one  degree  from 
his  father,  two  from  his  grandfather :  in  the  transverse  or  collateral 
line,  by  adding  the  degrees  which  separate  each  collateral  from  the 
common  stock;  thus,  a  man  is  two  degrees  from  his  sister,  three 
from  his  niece. 

Constantinus,  A.  D.  355,  restored  the  ancient  law  and  prohibited 


1.  §§  65-75.]     DE  ERRORIS  CAVSAE  PROBATIONE         49 

marriage  with   a  brother's    daughter  as    incestuous,    Cod.    Theod. 
3,  12,  1. 

Affinity  (affinitas)  is  the  relationship  of  a  person  to  the  kin 
(cognates)  of  a  spouse.  The  husband  is  allied  to  the  kin  of  the  wife, 
the  wife  to  the  kin  of  the  husband  ;  but  there  is  no  alliance  between 
the  kin  of  the  husband  and  the  kin  of  the  wife.  The  following  are 
some  of  the  names  given  to  these  relationships.  In  the  ascending 
line  the  father  and  mother  of  the  wife  or  husband  are  socer  and 
socrus  (father-in-law,  mother-in-law),  and  in  relation  to  them  the 
husband  of  the  daughter  and  wife  of  the  son  are  gener  and  nurus 
(son-in-law,  daughter-in-law).  In  the  descending  line  the  children 
of  the  spouse  are  privignus  and  privigna  (step-son,  step-daughter), 
and  in  relation  to  them  the  husband  of  the  mother  and  the  wife  of 
the  father  are  vitricus  and  noverca  (step-father  and  step-mother). 
In  the  collateral  line  the  husband's  brother  is  levir  (brother-in-law), 
the  husband's  sister  is  glos  (sister-in-law).  Intermarriage  with  affines 
in  the  direct  line,  or  their  ascendents  or  descendents,  was  absolutely 
prohibited ;  collateral  alliance  appears  to  have  been  no  impediment 
in  the  time  of  Gaius,  but  at  a  later  period  marriage  with  a  deceased 
brother's  wife  or  a  deceased  wife's  sister  was  forbidden,  Cod.  Theod. 

2,  3,  12;  Cod.  5,  5,  5. 

To  the  marriage  of  a  filius-  or  filia-familias  the  consent  of  the 
father  was  required :  but  if  he  withheld  it  without  a  reason  he 
could  be  compelled  by  the  magistrate  to  give  it,  and,  in  the  case  of 
a  daughter,  to  provide  a  dower,  Dig.  23,  2,  19:  one  of  several  in- 
stances in  which,  as  the  condition  of  the  validity  of  a  title,  when 
a  voluntary  action  could  not  be  obtained,  the  legislator  substituted 
a  compulsory  action,  instead  of  simply  declaring  the  action  unne- 
cessary. See  §  190,  comm. 

DE  ERKOKIS  CAVSAE  PROBATIONE. 

§   65.     I  Aliquando     autem  §  65.    It    sometimes    happens 

euenit  ut  liberi  qui  ttatim  ut  that  children  when  first  born  are 

7ia|ti   sunt   parentum  in  pote-  not  in  their  father's  power,  but 

state  non  fiant,  ii  postea  tamen  are  subsequently  brought  under 

redigantur  in  potestatem.  ik 
Inst.  1,10,13. 

§  66.     Veluti^si  Latinua  ex  §  66>  Thus,  under  the  lex  Aelia 

lege  Aelia  Sentia  uxore  ducta  sentia  a  Latin  who  marries  and 

tilium  procreauerit  aut  Latinum  begets  a  son  of  Latin  status  by 

ex  Latina  aut  ciuem  Romanum  a  Latin  mother,  or  a  citizen  of 

ex  ciue  Romana,  non  habebit  Eome  by  a  Eoman  mother,  has 

eum  in  potestate  ;  sed  si  postea,  not  power  over  him  ;  but  on  proof 

causa probB,i&ius{Qui'ritiurtiy  of  his   case  as  required  by  the 


50 


DE  PEESONIS 


[i.  §§65 -75. 


consecitfats  fuerit,  simul  eum  in 
potestate  sua  habere  incipit. 

§  67.  Item  si  ciuis  Romanus 
Latinam  autperegrinamuxorem 
duxerit  per  ignorantiam,  cum 
earn  ciuem  Romanam  esse  cre- 
deret,  et  filium  procreauerit, 
hie  non  est  in  potestate  eius, 
quia  ne  qmdem  ciuis  Romanus 
est,  sed  aut  Latinus  aut  pere- 
grinus,  id  est  eius  condicionis 
cuius  et  mater  fuerit,  quia  non 
aliter  quisque  ad  patris  con- 
dicionem  accedit,  quam  si  inter 
patrern  et  matrem  eius  conu- 
bium  sit;  sed  ex  senatuscon- 
sulto  permittitur  causam  erroris 
probare,  et  ita  uxor  quoque  et 
films  ad  ciuitatem  Romanam 
perueniunt,  et  ex  eo  tempore 
incipit  filius  in  potestate  patris 
esse.  idem  iuris  est,  si  earn  per 
ignorantiam  uxorem  duxerit 
quae  dedi^ciorum  numero  est, 
nisi  quod  uxor  non  fit  ciuis 
Romana. 

§  68.  Item  si  ciuis  Romana 
per  errorem  nupta  sit  peregrine 
tamquam  ciui  Romano,  per- 
mittitur ei  causam  erroris  pro- 
bare,  et  ita  filius  quoque  eius 
et  maritus  ad  ciuitatem  Ro- 
manam perueniunt,  et  aeque 
simul  incipit  filius  in  potestate 
patris  esse.  idem  iuris  est,  si 
peregrine  tamquam  Latino  ex 
lege  Aelia  Sentia  nupta  sit ; 
nam  et  de  hoc  specialiter  se- 
natusconsulto  cauetur.  idem 
iuris  est  aliquatenus,  si  ei  qui 
deditficiorum  numero  est  tam- 
quam ciui  Romano  aut  Latino 
e  lege  Aelia  Sentia  nupta  sit ; 
nisi  quod  scilicet  qui  dediti- 
ciorum  numero  est,  in  sua  con- 
dicione  permanet,  et  ideo  filius, 
quamuis  fiat  ciuis  Romanus, 


statute,  he  becomes  a  Roman  citi- 
zen along  with  his  son,  who  is 
henceforth  subject  to  his  power. 
§  67.  Again,  if  a  Roman  citizen 
marry  a  Latin  or  an  alien  woman, 
in  a  mistaken  belief  that  she  is  a 
Roman  citizen,  the  son  whom  he 
begets  is  not  in  his  power,  not 
indeed  being  born  a  Roman  citi- 
zen, but  a  Latin  or  an  alien,  that 
is  to  say,  of  the  same  status  as  his 
mother,  for  a  child  is  not  born 
into  the  condition  of  his  father 
unless  his  parents  had  capacity 
of  civil  marriage  :  but  a  senatus- 
consult  allows  the  father  to  prove 
a  cause  of  justifiable  error,  and 
then  the  wife  and  son  become 
Koman  citizens,  and  the  son  is 
thenceforth  in  the  power  of  the 
father.  The  same  relief  is  given 
when  a  Roman  citizen  under  a  like 
misconception  marries  a  freed- 
woman  having  the  status  of  a 
surrendered  foe,  except  that  the 
wife  does  not  become  a  Roman 
citizen. 


§  68.  Again,  a  female  Roman 
citizen  who  marries  an  alien,  be- 
lieving him  to  be  a  Roman  citizen, 
is  permitted  to  prove  a  cause  of 
justifiable  error,  and  thereupon 
her  son  and  husband  become  Ro- 
man citizens,  and  simultaneously 
the  son  becomes  subject  to  the 
power  of  his  father.  Similar  relief 
is  given  if  she  niarry  an  alien  as 
a  Latin  intending^)  comply  with 
the  conditions  of  the  lex  Aelia 
Sentia,  for  this  case  is  specially 
provided  forinthesenatusconsult. 
Similar  relief  is  given  to  a  certain 
extent  if  she  many  a  freedman 
having  the  status  of  a  surrendered 
foe  instead  of  a  Roman  citizen, 
or  instead  of  a  Latin,  whom  she 
intended  to  marry  according  to 
the  provision  of  the  lex  Aelia 
Sentia,  except  that  the  freedman 


i;  §§  65-75.]     DE  ERRORIS  CAVSAE  PROBATIONE         51 


in  potestatem  patris  non  redi- 
gitur. 


§  69.  Item  si  Latina  pere- 
grino,  cum  eum  Latinum  esse 
crederet,  (e  lege  Aelia  Sentia} 
nupserit,  potest  ex  senatuscon- 
sulto  filio  nato  causam  erroris 
probare,  et  ita  omnes  fiunt 
ciues  Romani  et  films  in  pote- 
state  patris  esse  incipit. 

S  70.    Idem  constitutum  est, 

•          T  • 

si  Latinus  per  errorem  pere- 
grinam  quasi  Latinam  aut 
ciuem  Romanam  e  lege  Aelia 
Sentia  uxorem  duxerit. 

§  71.  Praeterea  si  ciuis 
Romanus,  qui  se  credidisset 
Latinum  esse,  ob  id  Latinam 
(uxorem  duxerit},  permittitur 
ei  filio  nato  erroris  causarn  pro- 
bare,  tamquam  (si)  e  lege 
Aelia  Sentia  uxorem  duxisset. 
Item  his  qui  cum  ciues  Romani 
essent,  peregrinos  se  esse  credi- 
dissent  et  peregrinas  uxores 
duxissent,  permittitur  ex  se- 
natusconsulto  filio  nato  causam 
erroris  probare  ;  quo  facto  fiet  | 

uxor  ciuis  Rom  ana  et  films 

non  solum  ad  cmi£a]tem  Ro- 
manam peruenit,  sed  etiam  in 
potestatem  patris  redigitur. 

§  72.  Quaecumque  de  filio 
esse  diximus,  eadem  et  de  filia 
dicta  intellegemus. 

§  73.  Et  quantum  ad  erroris 
causam  probandam  attinet, 
nihil  interest  cuius  aetatis  filius 

sit  | 1 1 — ,  si  minor 

anniculo  sit  filius  filiaue,  causa 
probari  |  non  potest.  nee  me 
praeterit  in  aliquo  rescripto 
diui  Hadriani  ita  esse  consti- 


husband  continues  of  the  same 
status,  and  therefore  the  son, 
though  he  becomes  a  Eoman  citi- 
zen, does  not  fall  under  paternal 
power. 

§  69.  Also  a  Latin  freed  woman 
married  according  to  the  provision 
of  the  lex  Aelia  Sentia  to  an  alien 
whom  she  believed  to  be  a  Latin, 
is  permitted  by  the  senatuscon- 
sult,  on  the  birth  of  a  son,  to  prove 
a  cause  of  justifiable  error,  and 
thereupon  they  all  become  Roman 
citizens,  and  the  son  becomes 
subject  to  paternal  power. 

§  70.  Exactly  the  same  relief  is 
given  if  a  Latin  freedman  mis- 
takenly marry  an  alien  woman 
believing  her  to  be  a  Latin  f reed- 
woman,  or  a  Roman  citizen, 
when  he  intended  to  comply  with 
the  lex  Aelia  Sentia. 

§  71.  Further,  a  Roman  citizen 
who  marries  a  Latin  freed  woman, 
believing  himself  to  be  a  Latin,  is 
permitted  on  the  birth  of  a  son  to 
prove  the  cause  of  his  mistake  as 
if  he  had  married  according  to  the 
provisions  of  the  lex  Aelia  Sentia. 
So,  too,  a  Roman  citizen,  who 
marries  an  alien,  believing  him- 
self to  be  an  alien,  is  permitted 
by  the  senatusconsult  on  the  birth 
of  a  son  to  prove  the  cause  of  the 
mistake,  and  then  the  alien  wife 
becomes  a  Roman  citizen,  and  the 
son  becomes  a  Roman  citizen  and 
subject  to  the  power  of  the  father. 


§  72.  Whatever  has  been  said 
of  a  son  applies  to  a  daughter. 

§  73.  And  as  to  the  proof  of  the 
cause  of  error,  the  age  of  the  son 
or  daughter  is  immaterial,  except 
that,  if  the  marriage  was  con- 
tracted with  an  intention  to  satisfy 
the  requirements  of  the  lex  Aelia 
Sentia,  the  child  must  be  a  year 
old  before  the  cause  can  be  proved. 


E  2 


52 


DE  PERSONIS 


[i.  §§65-75. 


tutum,  tamquam  quocZ  ad  er- 
roris     quoque  \  causam     pro- 

bandam 1 1 im- 

perator dedit. 


§  74  (Bed)  si  peregrinus 
ciuem  Romanam  uxorem  du- 
xerit,  an  ex  senatusconsulto 
causam  prepare  possit,  quae- 

situm  est, probare  \  causam 

non  potest,  quamuis  ipse 

—  |  hoc  ei  specialiter  concessum 
est.  sed  cum  peregrinus  ciuem 
Romanam  uxorem  duxisset  et 
filio  nato  alias  ciuitatem  Ro- 
manam consecutus  esset,  deinde 
cum  quaereretur,  an  causam 
probare  posset,  rescripsit  im- 
peratorAntoninusproindeposso 
eum  causam  probare,  atque  si 
peregrinus  mansisset.  ex  quo 
colligimus  etiam  peregrinum 
causam  probare  posse. 

§  75.  Ex  his  quae  diximus 
apparet,  siue  ciuis  Romanus 
peregrinam  siue  peregrinus 
ciuem  Romanam  uxorem  du- 
xerit,  eum  qui  nascitur  pere- 
grinum esse.  sed  siquidem  per 
errorem  tale  matrimonium  con- 
tractum  fuerit,  emendari  uitium 
eius  ex  senatusconsulto  licet 
(secundum}  ea  quae  superius 
diximus.  si  uero  null  us  error 
interuenerit,  (sedy  scientes 
suam  condicionem  ita  coierint, 
nullo  casu  ememfatur  uitium 
euts  matrimonii. 


I  am  aware  that  a  rescript  of  the 
late  Emperor  Hadrian  speaks  as 
if  it  was  a  condition  of  proof  of 
the  cause  of  error  that  the  son 
must  be  a  year  old,  but  this  is  to 
be  explained  by  the  particular 
circumstances  of  the  case  in  which 
this  rescript  was  granted. 

§  74.  It  is  a  question  whether  an 
alien,  who  has  married  a  Roman 
wife,  can  prove  cause  of  error 
under  the  S.  C.  But  when  an 
alien,  believed  to  be  a  Roman 
citizen,  married  a  Roman  wife, 
and  subsequently  to  the  birth  of  a 
son  acquired  Roman  citizenship, 
on  the  question  arising  whether 
he  could  prove  the  cause  of  error, 
a  rescript  of  Antoninus  Pius  de- 
cided that  he  was  just  as  com- 
petent to  prove  as  if  he  had  con- 
tinued an  alien  :  from  which  may 
be  gathered  that  an  alien  is  com- 
petent to  prove  the  cause  of  error. 


§  75,  Hence  it  appears  that  a 
person  born  in  marriage  is  an 
alien  if  his  father  was  a  Roman 
citizen  and  his  mother  an  alien, 
or  if  his  father  was  an  alien  and 
his  mother  a  Roman  citizen, 
though  if  the  marriage  was  con- 
tracted under  a  mistake,  a  remedy 
is  supplied  by  the  S.  C.  as  above 
explained.  No  relief  is  given  in 
any  case,  where  the  parties  did 
not  contract  marriage  under  an 
error,  but  were  aware  of  their 
condition. 


Mistake  or  error  sometimes  conferred  a  right  which  a  party 
could  not  have  acquired  if  he  had  not  acted  under  a  mistake.  Thus, 
the  lender  of  money  to  a  filiusfamilias  without  the  father's  consent 
had  no  legal  claim  to  recover,  unless  he  lent  believing  the  borrower 
to  be  independent  (sui  juris),  and  possession  could  not  mature  by 
usucapion  into  ownership,  unless  it  had  a  bona  fide  inception,  i.e. 


I.  §§  76-87.]  DE  STATV  LIBERORVM 


53 


unless  it  commenced  in  an  honest  misunderstanding.  The  relief  of 
error  had  similarly  important  results  in  questions  of  status.  Erroris 
causam  probare  seems  to  mean  'to  make  good  a  title  by  error/ 
i.  e.  to  establish,  as  title  (causa)  to  relief,  a  probabilis  error  or  justa 
ignorantia  ;  i.  e.  a  mistake  not  due  to  negligence ;  for  negligence 
would  exclude  from  relief. 

The  subjection  of  a  child  to  patria  potestas  by  erroris  causae 
probatio  operated  to  invalidate  a  previously  executed  will,  like  the 
subsequent  birth  (agnatio)  of  a  child  in  civil  wedlock  (suus  postu- 
mus),  2  §  142. 


DE   STATV   LIBERORVM. 


§  76.  Loquimur  autem  de 
his  scilicet,  {inter}  quos  conu- 
bium  non  sit ;  nam  alioquin 
si  ciuis  Romanus  peregrinam 
cum  qua  ei  conubium  est  uxo- 
rem  duxerit,  sicut  supra  quoque 
diximus,  iustum  matrimonium 
contrahiiur ;  et  tune  ex  his  qui 
nascitur  ciuis  Romanus  est  et 
in  potestate  patris  erit. 

§  77.  Item  si  ciuis  Romana 
peregrine,  cum  quo  ei  conu- 
bium est,  nupserii,  peregrinum 
sane  procreatf  et  is  iustus  patris 
filius  est,  tamquam  si  ex  pere- 
grina  eum  procreasset.  hoc 
tamen  tempore  (ex)  senatus- 
consulto,  quod  auctore  diuo 
Hadriano  factum  est,  etiamsi 
non  fuerit  conubium  inter 
ciuemRomanam  et  peregrinum, 
qui  nascitur  iustus  patris  filius 
est. 

§  78.  Quod  autem  diximus 
inter  ciuem  Romanam  pere- 

grinurnque qui  \  nascitur 

peregrinum  esse,  lege  Minicia 

c&uetur,( )  jest,  ut  a 

parentis  condicionem  sequatur.\ 
eadem  lege  enim  ex  diuerso 
cauetur,  ut  si  peregrinam,  cum 
qua  ei  conubium  non  sit,  uxo- 
rem  duxerit  ciuis  Romanus, 


§  76.  It  is  to  be  remembered 
that  we  are  speaking  of  a  marriage 
between  persons  who  have  not 
the  capacity  of  entering  into  a 
civil  marriage  with  one  another. 
When,  however,  a  Roman  citizen 
takes  to  wife  an  alien  privileged  as 
I  described  (§  56),  he  contracts 
a  civil  marriage,  and  his  son  is 
born  a  Roman  citizen  and  subject 
to  his  power. 

§  77.  So  if  a  female  Roman 
citizen  many  an  alien  with  whom 
she  has  capacity  of  civil  marriage, 
her  son  is  an  alien  and  a  lawful 
son  of  his  father,  just  as  if  his 
mother  had  been  an  alien.  At 
the  present  day,  by  a  senatus- 
consult  passed  on  the  proposition 
of  the  late  Emperor  Hadrian,  even 
without  civil  marriage  the  off- 
spring of  a  Roman  woman  and 
alien  is  a  lawful  son  of  his  father. 

§  78.  The  rule  we  have  stated 
that  when  a  female  Roman  citizen 
marries  an  alien,  the  offspring  is 
an  alien,  if  there  is  no  capacity  of 
civil  marriage  between  them,  is 
enacted  by  the  lex  Minicia,  which 
also  provides  that  when  a  Roman 
citizen  marries  an  alien  woman, 
and  there  is  no  capacity  of  civil 
marriage  between  them,  their  off- 
spring shall  be  an  alien.  This 


54 


DE  PERSONIS 


[r.§§  76-87. 


peregrinus  ex  eo  coitu  nascatur. 
sed  hoc  maxime  casu  necessaria 
lex  Minicia  ;  nam  remota  ea 
lege  diuersam  condicionem 
sequi  debebat,  quia  ex  eis, 
inter  quos  non  est  conubium, 
qui  nascitur  iure  gentium 
matris  condicioni  accedit.  qua 
parte  autem  iubet  lex  ex  cine 
Romano  et  peregrina  pere- 
grinum  nasci,  superuacua  uide- 
tur;  nam  et  remota  ea  lege 
hoc  utique  iure  gentium  |  fu- 
turum  erat. 

§  79.     Adeo  autem  hoc  ita 

est,  ut 1 1 • 

iion  |  solum  exterae  nationes  et 
gentes,  sed  etiam  qui  Latini 
nominantur ;  sed  ad  alios 
Latinos  pertinet  qui  proprios 
populos  propriasque  ciuitates 
habebant  et  erant  peregrinorum 
numero. 


§  80.  Eadem  ratioue  ex  con- 
trario  ex  Latino  et  ciue  Romana, 
siue  ex  lege  Aelia  Sentia  siue 
aliter  contractum  fnerit  matri- 
monium,  ciuis  Romanus  nasci- 
tur. fuerunt  tamen  qui  puta- 
uerunt  ex  lege  Aelia  Sentia 
contracto  matrimonio  Latinum 
nasci,  quia  uidetur  eo  casu  per 
legem  Aeliam  Sentiam  et 
luniam  conubium  inter  eos 
dari,  et  semper  conubium  efficit, 
ut  qui  nascitur  patris  condi- 
cioni  accedat ;  aliter  uero  con- 
tracto matrimonio  eum  qui 
nascitur  iure  gentium  matris 
condicionem  sequi  et  ob  id 
esse  ciuem  Romanum.  sed  hoc 
iure  utimur  ex  senatusconsulto, 
quo  auctore  diuo  Hadriano 
significatur,  ut  quoquo  modo 
ex  Latino  et  ciue  Romana 


special  enactment  was  required  in 
the  first  case,  as  otherwise  the 
child  would  follow  the  condition 
of  the  mother ;  for  when  there 
is  no  capacity  of  civil  marriage 
between  parents,  their  offspring 
belongs  to  the  condition  of  his 
mother  by  jus  gentium.  But  the 
part  of  this  law  which  ordains 
that  the  offspring  of  a  Roman 
citizen  and  an  alien  Woman  is  an 
alien  seems  to  be  superfluous, 
since*  without  any  enactment  this 
would  be  so  under  the  rule  of 
jus  gentium. 

§  79.  Somuchsothatitisunder 
this  rule  of  jus  gentium  that  the 
offspring  of  a  Latin  freedwoman 
byaRoman  citizen  with  whom  she 
has  no  capacity  of  civil  marriage 
is  a  Latin,  since  the  statute  did 
not  refer  to  those  who  are  now 
designated  Latins  ;  for  the  Latins 
mentioned  in  the  statute  are 
Latins  in  another  sense,  Latins 
by  race  and  members  of  a  foreign 
state,  that  is  to  say,  aliens. 

§  80.  By  the  same  principle, 
conversely,  the  son  of  a  Latin 
and  a  Roman  woman  is  by  birth 
a  Roman  citizen,  whether  their 
marriage  was  contracted  under 
the  lex  Aelia  Sentia  or  otherwise. 
Some,  however,  thought  that  if 
the  marriage  was  contracted  in 
accordance  with  the  lex  Aelia 
Sentia,  the  offspring  is  a  Latin 
by  birth,  because  on  this  hypo- 
thesis the  lex  Aelia  Sentia  and 
Junia  confer  a  capacity  of  civil 
marriage,  and  a  civil  marriage 
always  transmits  to  the  offspring 
the  status  of  the  father:  if  the 
marriage  was  otherwise  contract- 
ed, they  held  the  offspringacquires 
by  jus  gentium  the  status  of  his 
mother.  However,  the  law  on 
this  point  is  now  determined  by 
the  senatusconsult  passed  on  the 
proposition  of  the  late  Emperor 


r.  §§  76-87.]  DE  STATV  LIBERORVM 


55 


natus    ciuis    Romanus    nasca- 
tur. 


§  81.  His  omuenienter  etmm 
illud  senatuseonsultum  diuo 
Hadriano  auctore  significauit, 
ut  (qui)  ex  Latino  et  pere- 
grina,  item  contra  (qui)  ex 
peregrino  et  Latina  nascititr, 
is  matris  condicionem  sequatur. 

§  82.  Illud  quoque  his  con- 
sequens  est,  quod  ex  ancilla 
et  libero  iure  gentium  seruus 
nascitur,  et  contra  ex  libera  et 
seruo  liber  nascitur. 

§  83.  Animaduertere  tamen 
debemus,  ne  iuris  gentium  regu- 
lam  ue£  lex  aliqua  uel  quod 
legis  uicem  optinet,  aliquo  casu 
commutauerit. 

§  84.  Ecce  enim  ex  senatus- 
consulto  Claudiano  poterat 
ciuis  Romana  quae  alieno  seruo 
uolente  domino  eius  coiit,  ipsa 
ex  pactione  libera  permanere, 
sed  seruum  procreare ;  nam 
quod  inter  earn  et  dominum 
istius  serui  conuenerit,  eo  se- 
natusconsulto  ratum  esse  iu- 
betur.  sed  postea  diuus  Ha- 
drianus  iniquitate  rei  et  inele- 
gantia  iuris  motus  restituit 
iuris  gentium  regulam.  ut  cum 
ipsa  mulier  libera  permaneat, 
liberum  pariat. 

§  85.     (Item  e  lege } 

ex  aTicilla  et  libero  poterant 
liberi  nasci ;  nam  '  ea  lege 
cauetur,  ut  si  quis  cum  aliena 
ancilla  quam  credebat  liberam 
esse  coierit,  siquidem  mascuft 
nascantur,  liberi  sint,  si  uero 
feminae,  ad  euro,  pertineafit 
cuius  mater  aTicilla  fuerit.  sed 
et  in  hac  specie  diuus  Vespa- 
sianus  inelegantia  iurie  motus 


Hadrian,  which  enacts  that  the 
son  of  a  Latin  and  a  Koman 
woman  is  under  every  hypothesis 
a  Roman  citizen. 

§81.  Consistently  here  with  Ha- 
drian's senatusconsult  provides 
that  the  offspring  of  the  marriage 
of  a  Latin  freedman  with  an  alien 
woman  or  of  nn  alien  with  a 
Latin  freedwoman  follows  the 
mother's  condition. 

§  82.  Consistently  herewith  the 
offspring  of  a  female  slave  and  a 
freeman  is  by  jus  gentium  a  slave, 
the  offspring  of  a  freewoman  and 
a  slave  is  free. 

§  83.  We  must  observe,  how- 
ever, whether  the  jus  gentium 
in  any  given  instance  is  overruled 
by  a  statute  or  ordinance  having 
the  authority  of  a  statute. 

§  84.  For  instance,  the  Sc.  Clau- 
dianum  permitted  to  a  female  citi- 
zen of  Rome  having  intercourse 
with  a  slave  with  his  owner's 
consent,  to  continue  herself  in 
virtue  of  the  agreement  free, 
while  she  gave  birth  to  a  slave, 
her  agreement  to  that  effect  with 
the  owner  being  made  valid  by  the 
senatusconsult.  Subsequently, 
however,  the  late  Emperor  Ha- 
drian was  induced  by  the  injustice 
and  anomaly  of  the  ordinance  to 
re-establish  the  rule  of  jus  gen- 
tium, that  as  the  mother  continues 
free  the  offspring  follows  her 
status. 

§  85.  By  a  law  (the  name  of 
tvJiich  is  unknown]  the  offspring 
of  a  female  slave  by  a  freeman 
might  be  free,  for  that  law  pro- 
vided that  the  offspring  of  a  free- 
man by  another  person's  female 
slave  whom  he  believed  to  be  free 
shall  be  free  if  they  are  male,  but 
shall  belong  to  their  mother's 
proprietor  if  they  are  female: 
but  here  too  the  late  Emperor 
Vespasian  was  moved  by  the 


56 


DE  PERSONIS 


[i.  §§76-87. 


restituit  iuris  gentium  regulam, 
ut  omni  modo,  etiamsi  masculi 
nascantur,  serui  sint  eius  cuius 
et  mater  fuerit. 


§  86.  Sed  ilia  pars  eiusdem 
legis  salua  est,  ut  ex  libera  et 
seruo  alieno,  quern  sciebat 
seruum  esse,  serui  nascantur. 
itaque  apud  quos  talis  lex  non 
est,  qui  nascitur  iure  gentium 
matris  condicionem  sequitur  et 
ob  id  liber  est. 

§  87.  Quibus  autem  casibus 
matris  et  non  patris  condi- 
cionem sequitur  qui  nascitur, 
isdem  casibus  in  potestate  eum 
patris,  etiamsi  is  ciuis  Romanus 
sit,  non  esse  plus  quam  mani- 
festum  est.  et  ideo  superius 
rettulimus  quibusdam  casibus 
per  errorem  non  iusto  contracto 
matrimonio  senatuminteruenire 
et  emendare  uitium  matrimonii, 
eoque  modo  plerumque  efficere, 
ut  in  potestatem  patris  filius 
redigatur. 

§§  76,  &c.  The  rules  relating  to  the  status  of  the  offspring  of  parents 
of  unequal  status  are  at  first  sight  chaotic  and  bewildering,  but  they 
are  reducible  to  a  few  canons.  The  most  general  canon  is  the  rule 
of  jus  gentium,  that  children  follow  the  condition  of  the  mother. 
This  is  subject  to  two  exceptions. 

1.  Children  born   in  civil  wedlock  follow  the  condition  of  the 
father.     Cf.  §§  88,  89,  94. 

2.  Children  born  in  gentile  (lawful)  wedlock  of  a  Eoman  mother 
and  alien  father  follow  the   condition  of  the  father:    this  was  a 
special  enactment  of  the  lex  Minicia. 

These  rules  are  stated  in  the  following  passages :  Lex  naturae 
haec  est  ut  qui  nascitur  sine  legitimo  matrimonio  matrem  sequatur 
nisi  lex  specialis  aliud  inducat,  Dig.  1,  5,  24.  'By  the  law  of 
nature  children  not  born  in  civil  wedlock  follow  the  status  of  the 
mother,  in  the  absence  of  a  special  statute  to  the  contrary.'  Con- 
nubio  interveniente  liberi  semper  patrem  sequuntur:  non  inter- 
veniente  connubio,  matris  condition!  accedunt,  excepto  eo  qui  ex 


anomalous  character  of  the  rule 
to  re-establish  the  canon  of  jus 
gentium,  and  declared  that  the 
offspring  in  every  case,  whether 
male  or  female,  should  be  slaves 
and  the  property  of  their  mother's 
owner. 

§  8  6.  But  another  clause  of  that 
law  continues  in  force,  providing 
that  the  offspring  of  a  freewoman 
by  another  person's  slave  whom 
she  knows  to  be  a  slave  are  born 
slaves,  though  where  this  law  is 
not  established  the  offspring  by 
jus  gentium  follow  the  mother's 
condition  and  are  free. 

§  87.  When  the  child  follows 
the  mother's  condition  instead  of 
the  father's,  it  is  obvious  that  he 
is  not  subject  to  the  power  of 
the  father,  even  though  the  father- 
is  a  Roman  citizen  :  but  in  some 
cases,  as  I  mentioned  above  (§67), 
when  a  mistake  was  the  occasion 
of  a  non-civil  marriage  being  con- 
tracted, the  senate  interferes  and 
purges  the  defect  of  the  marriage, 
and  this  generally  has  the  effect  of 
subjecting  the  son  to  the  power 
of  the  father. 


I.  §§  88-92.]  DE  STATV  LIBERORVM  57 

peregrine  et  cive  Romana  peregrinus  nascitur,  quoniam  lex  Minicia 
(in  MS.  Mensia)  ex  alterutro  peregrine  natum  deterioris  parentis 
conditionem  sequi  jubet,  Ulpian,  5,  8.  'In  civil  wedlock  the 
children  have  the  status  of  the  father,  in  the  absence  of  civil 
wedlock  of  the  mother ;  except  that  the  children  of  an  alien  father 
and  Roman  mother  are  aliens,  as  the  lex  Minicia  makes  the  children 
aliens  when  either  parent  is  an  alien.' 

The  Sc.  Claudianum  introduced  some  special  enactments  respect- 
ing the  intercourse  of  freewomen  with  slaves,  which,  however,  were 
subsequently  abolished. 

a.  If  a  freewoman  had  intercourse  with  a  slave  with  the  consent 
of  his  proprietor  she  retained  her  freedom,  though  degraded  to  the 
class  of  a  freedwoman,  but  her  issue  was  the  slave  of  the  proprietor. 
The  slavery  of  the  issue  was  abolished  by  Hadrian.  §  84. 

b.  If  a  freewoman  persisted  in  intercourse  with  the  slave  of  another 
person  against  the  will  and  in  spite  of  the  prohibition  of  the  pro- 
prietor, after  three  denunciations  on  his  part  she  was  awarded  to  him 
by  the  magistrate  as  a  slave,  and  her  issue,  whether  born  before  or 
after  the  adjudication,  became  slaves  of  the  same  person,  who  also 
acquired  her  estate  by  a  species  of  universal  succession.     Cf.  §§91, 
160.     This  terroristic  law,  which,  from  the  minuteness  with  which 
the  details  are  developed  (Paulus,  2,  21),  appears  to  have  been  often 
applied,  was  not  abrogated  till  the  time  of  Justinian,  Inst.  3,  12,  1 . 

c.  If  a  freeman  had  intercourse  with  a  slave  whom  he  supposed 
to  be  free  by  a  law  the  title  of  which  is  lost,  but  which  possibly  may 
be  the  Sc.  Claudianum,  her  male  children  were  born  into  freedom. 
This   relief  of   error   was   abolished    by   Vespasian   as    anomalous 
(inelegans),  §  85. 

§  80.  There  was  some  ground  for  the  view  that  a  marriage 
under  the  lex  Aelia  Sentia,  because  it  was  statutory  (regulated 
by  statute),  was  therefore  a  civil  marriage ;  and  we  may  regard  the 
senatusconsult  of  Hadrian,  which  denied  its  civil  character,  as  not 
purely  declaratory. 

§  88.    Sed  si  ancilla  ex  ciue  §  88    if  a  female  slave  conceive 

Romano      concepmt,      delude  by  a  Eoman  citizen  and  become 

manumissa  cmis  Romana  facta  herself  by  manumission  a  Roman 

sit  et  tune  pariat,  licet   ciuis  citizen  before  giving  birth  toa  son, 

Rowawus  sit  qui  nascitur,  sicut  her  son,  though  a  Roman  citizen 

pater  eius,  non  tamen  in  pote-  like  his  father,  is  not  in  his  father's 

state  patris  est,  quia  neque  ex  power,    because  he  was  not  be- 

iusto   coitu    conceptus  est  ne-  gotten  in  civil  wedlock,  and  there 

que    ex    ullo    senatusconsulto  is  no  senatusconsult  which  cures 

tails    coitus  quasi  iustus    con-  the  defect  of  the  intercourse  in 

stituitur.  which  he  was  begotten. 


58 


DE  PERSONIS 


[i.  §§  88-92. 


§  89.  Quod  autem  placuit,  si 
ancilla  ex  ciue  Romano  con- 
ceperit,  deinde  manumissa 
pepererit.  qui  nascitur  liberum 
nasci,  -natural!  ratione  fit ;  nam 
hi  qui  illegitime  concipiuntur, 
statum  suniunt  ex  eo  tempore 
quo  nascuntur ;  itaque  si  ex 
libera  nascuntur,  liberi  fiunt, 
nee  interest  ex  quo  mater  eos 
conceperit,  cum  ancilla  fuerit ; 
at  hi  qui  legitime  concipiuntur 
ex  conceptionis  tempore  statum 
sumuni. 

§  90.  Itaque  si  cm  mulieri 
ciui  Romanae  praegnati  aqua 
et  igni  interdictum  fuerit,  eoque 
modo  peregrina  i'acta  tune 
pariat,  conplures  distinguurit  et 
puta-nt,  siquidem  ex  iustis  nup- 
tiis  conceperit,  ciuem  Romanum 
ex  ea  nasci,  si  uero  uulgo  con- 
ceperit,  peregrinum  ex  ea  nasci. 

§  91.  Item  si  qua  mulierciuis 
Romana  praegnas  ex  senatus- 
consulto  Claudiano  ancilla  facta 
sit  ob  id,  quod  alieno  seruo 
inuito  et  denuntiante  domino 
eius  (coierif),  conplures  distin- 
(/itunt  et  existimant,  siquidem 
ex  iustis  nuptiis  concepts  sit, 
ciuem  Romanum  ex  ea  nasci, 
si  uero  uulgo  conceptus  sit, 
seruum  nasci  eius  cuius  mater 
facta  esset  ancilla. 

§  92.  Peregrina  quoque  si 
uulgo  conceperit,  deinde  ciuis 
Romana  {fiat}  et  tune  pariat, 
ciuem  Romanum  parit ;  si  uero 
ex  peregrine  secundum  leges 
moresque  peregrinorum  con- 
ceperit, ita  uidetur  ex  sena- 
tusconsulto  quod  auctore 
diuo  Hadriano  factum  est 
ciuem  Romanum  parere,  si  et 
patri  eius  ciuitas  Romana  do- 


§  89.  The  decision  that  when  a 
female  slave  conceives  by  aEoman 
citizen  and  is  manumitted  before 
childbirth,  her  offspring  is  born 
free,  is  a  rule  of  natural  law  ;  for 
in  illegitimate  or  non-civil  con- 
ception the  status  of  the  offspring 
depends  on  the  moment  of  birth, 
and  the  mother's  freedom  at  the 
moment  of  birth  makes  the  off- 
spring free,  and  the  status  of  the 
father  is  immaterial;  but  in 
statutory  or  civil  conception  the 
status  of  the  child  is  determined 
by  the  time  of  conception. 

§  90.  Accordingly,  if  a  female 
citizen  of  Eome  being  pregnant  is 
interdicted  from  fire  and  water, 
and  becoming  thus  an  alien  gives 
birth  to  a  child,  many  jurists 
distinguish  and  hold  that  her 
offspring  is  a  Roman  citizen  if 
begotten  in  civil  wedlock,  but  if 
in  promiscuous  intercourse,  an 
alien. 

§  91.  So  if  a  female  citizen  of 
Eome  being  pregnant  is  reduced  to 
slavery  under  the  Sc.  Claudianum 
for  having  intercourse  with  a  slave 
in  spite  of  the  dissent  and  de- 
nunciation of  his  owner,  many 
jurists  make  a  distinction  and 
hold  that  her  offspring,  if  con- 
ceived in  civil  wedlock  is  a  citizen 
of  Rome,  if  conceived  in  illicit 
intercourse  is  a  slave  of  the  person 
who  becomes  proprietor  of  the 
mother. 

§  92.  Also  if  an  alien  woman 
conceive  in  illicit  intercourse  and 
afterwards  becomes  a  Roman  citi- 
zen and  gives  birth  to  a  child,  the 
child  is  a  Roman  citizen  ;  but  if 
she  conceived  by  an  alien,  to 
whom  she  was  married  in  accord- 
ance with  alien  laws  and  customs, 
it  seems  that  upon  Hadrian's 
senatusconsult  her  offspring  is 
only  born  a  Roman  citizen,  if  the 
father  also  has  acquired  the  Roman 
citizenship. 


T.  §§  88-92.]  DE  STATV  LIBERORVM  59 

Supposing  the  status  of  a  parent  changes  during  the  period  of 
gestation  (if,  for  instance,  the  mother  is  a  slave  at  the  time  of 
conception  and  free  at  the  time  of  birth),  what  effect  has  this  on 
the  status  of  the  issue  ?  The  following  rule  was  adopted  :  in  cases 
where  the  child  follows  the  status  of  the  father,  that  is,  when  it  is 
begotten  in  civil  marriage,  the  status  of  the  father  at  the  time  of 
conception  determines  the  status  of  the  child  ;  where  the  child 
follows  the  status  of  the  mothei',  that  is,  when  it  is  begotten  in 
gentile  marriage  or  in  promiscuous  intercourse,  the  status  of  the 
child  is  determined  by  the  status  of  the  mother  at  the  moment  of 
birth.  Ulpian,  5,  1 0.  '  Children  born  in  civil  wedlock  have  their 
status  fixed  at  the  time  of  conception ;  children  born  out  of  civil 
wedlock  have  their  status  fixed  at  the  time  of  delivery.'  That  is  to 
say,  the  legal  position  of  the  issue  is  made  to  follow  the  analogy  of  its 
physical  condition.  The  physical  influence  of  the  father  terminates 
with  conception :  his  subsequent  health,  life,  or  death,  does  not 
affect  the  physical  state  of  the  child  ;  but  the  child  is  affected  by 
every  change  in  the  physical  condition  of  the  mother,  her  health, 
life,  or  death,  up  to  the  moment  of  birth.  In  imitation  of  this 
analogy,  the  status  of  the  child,  when  it  depended  on  the  status  of 
the  father,  was  not  affected  by  any  change  in  that  status  subsequent 
to  the  period  of  conception ;  but  when  it  depended  on  the  status  of 
the  mother  it  varied  with  every  change  in  that  status  up  to  the 
moment  of  birth.  By  the  time  of  Gaius,  though  the  change  is  not 
mentioned  in  the  text,  this  rule  was  modified  in  favour  of  liberty, 
and  it  was  established  that  if  the  mother  was  free  either  at 
the  date  of  conception  or  at  the  date  of  birth  or  at  any  interme- 
diate period,  the  issue  was  born  free.  Si  libera  conceperit  et  ancilla 
facta  peperit,  liberum  parit,  id  enim  favor  libertatis  exposcit.  Si 
ancilla  conceperit  et  medio  tempore  manumissa  sit,  rursus  facta  ancilla 
peperit,  liberum  parit,  media  enim  tempora  libertati  prodesse,  non 
nocere  etiam  possunt,  Paulus,  2,  24,  2.  Cf.  Inst.  1,  4  pr. 

§  88.  The  issue  of  a  mother  who  was  a  slave  at  the  date  of  con- 
ception but  is  a  citizen  at  the  date  of  birth,  though  it  is  born  a 
Roman  citizen,  is  not  subject  to  patria  potestas,  because  it  does  not 
satisfy  the  definition  in  §  55,  liberi  quos  justis  nuptiis  procreavimus, 
'a  child  begotten  in  civil  wedlock.' 

§  90.  Aquae  et  ignis  interdictio  was  originally  a  permission  to  avoid 
punishment  under  the  penal  code  by  voluntary  exile.  Subsequently 
it  was  employed  as  a  punishment,  and  under  the  emperors  assumed 
the  form  of  deportatio  in  insulam.  It  was  attended  with  confiscation 
of  goods,  and  involved  loss  of  ci vitas  but  not  of  libertas,  §§  128,  161. 

§  92.  The  offspring  of  a  wedded  mother  who  was  an  alien  at  the 
date  of  conception  and  is  a  citizen  at  the  date  of  birth,  according 


60 


DE  PERSONIS 


[i.  §§93-96. 


to  the  general  rule  of  jus  gentium,  should  be  born  a  Roman  citizen  ; 
but  this  would  contravene  the  above-mentioned  lex  Minicia,  which 
enacted  that  the  issue  of  a  marriage  is  an  alien  whenever  either 
parent  is  an  alien,  §  78. 


§  93.  Si  peregrinus  sibi 
liberisque  suis  ciuitatem  Ro- 
man am  petierit,  non  aliter  filii 
in  potestate  eius  Hent,  quam  si 
imperator  eos  in  potestatem 
redegerit ;  quod  ita  demum  is 
facit,  si  causa  cognita  aesti- 
mauerit  hoc  filiis  expedire. 
diligentius  autem  exactiusque 
causam  cognoscit  de  inpuberi- 
bus  absentibusque  ;  et  haec  ita 
edicto  diui  Hadriani  signifi- 
ca?itur. 

§  94.  Item  si  quis  cum 
uxore  praegnate  ciuitate  Ro- 
mana  donatus  sit,  quamuis  is 
qui  nascitu?',  ut  supra  diximus, 
ciuis  Romanus  sit,  tamen  in 
potestate  patris  non  fit ;  idque 
subscriptione  dim  Hadriani 
significatur ;  qua  de  causa  qui 
intellegit  uxorem  suam  esse 
praegnatem,  dum  ciuitatem  sibi 
et  uxori  ab  imperatore  petit, 
simul  ab  eodem  petere  debet, 
ut  eum  qui  natus  erit  in  pote- 
state sua  habeat. 

§  95.  Alia  causa  est  eorum 
qui  Latii  iure  cum  liberis  suis 
ad  ciuitatem  Romanam  per- 
ueniunt ;  nam  horum  in  pote- 
state fiunt  liberi.  quod  ius  qui- 
busdam  peregrinis  ciuitatibus 
datum  est  uel  a  populo  Romano 
uel  a  senatu  uel  a  Caejsare. 


§96. 


aut  maius  est 


Lati|um  aut  minus:  maius  est 
Latium,  cum  et  hi  qui  decu- 
riones  leguntur  et  ei  qui  hono- 
rem  aliquem  aut  magistratum 
gerunt  ciuitatem  Romanam 


§  93.  If  an  alien  has  obtained 
by  petition  for  himself  and  his 
children  a  grant  of  Roman  citi- 
zenship, the  children  do  not  fall 
under  the  power  of  the  father 
except  by  express  ordinance  of 
the  emperor,  which  he  only  makes 
if,  on  hearing  the  facts  of  the 
case,  he  deems  it  expedient  for 
the  interest  of  the  children,  and 
he  makes  a  still  more  careful  and 
minute  inquiry  if  they  are  below 
the  age  of  puberty  and  absent,  as 
an  edict  of  the  Emperor  Hadrian 
intimates. 

§  94.  Also  if  an  alien  and  his 
pregnant  wife  receive  a  grant  of 
Roman  citizenship,  the  child, 
though  a  Roman  citizen,  as  above 
mentioned,  is  not  born  in  the 
power  of  his  father  according  to 
a  rescript  of  the  late  Emperor 
Hadrian  ;  wherefore,  if  he  knows 
his  wife  to  be  pregnant,  an  alien 
who  petitions  the  emperor  for 
Roman  citizenship  for  himself 
and  his  wife  ought  at  the  same 
time  to  petition  that  his  son  may 
be  subjected  to  his  power. 

§  95.  The  rule  is  different  for 
those  who  with  their  children  are 
made  Roman  citizens  by  right 
of  Latinity,  for  their  children  fall 
under  their  power ;  this  right 
has  been  conceded  to  certain  alien 
states  either  by  the  Roman  people, 
or  by  the  senate  or  by  the 
emperor. 

§  96.  The  right  of  Latinity  is 
either  greater  or  lesser.  Greater 
Latinity  is  the  right  whereby  those 
who  are  chosen  decuriones  or  hold 
some  high  office  or  magistracy  ac- 
quire Roman  citizenship :  lesser 


T.  §§  93-96.]  DE  STATV  LIBERORVM  61 

consecuntur ;  minus  Latium  est,  Latinity  is  when  only  those  who 

cum  hi  tantum   qui   magistra-  are  magistrates  or  hold  high  office 

turn    uel   honorem   gerunt    ad  acquire    Eoman     citizenship,    a 

ciuitatemRomanamperueniunt:  distinction  intimated  by  several 

idqueconpluribusepistulisprin-  imperial  rescripts. 
cipum  significatur. 

The  grant  of  civitas  was  either  made  to  communities  or  to 
individuals.  It  was  a  lucrative  source  of  revenue  to  the  emperors. 
The  fees  to  be  paid  were  not  small,  Acts  of  the  Apostles,  22,  28, 
and  the  new-made  civis  was  regarded  as  a  manumitted  slave  of  the 
emperor,  and  was  expected  to  remember  the  emperor  in  his  will. 
The  philosophic  emperor,  Marcus  Aurelius,  under  whom  Gaius 
flourished,  granted  Eoman  citizenship  to  all  who  were  ready  to 
pay  the  fees,  data  cunctis  promiscue  civitas  Romana,  Aurelius 
Victor,  16.  Antoninus  Caracalla,  A.D.  212-217,  after  raising  from 
one-twentieth  to  one-tenth  the  tax  on  manumissions  and  the  testa- 
mentary succession  and  legacy  duty,  which  was  only  levied  on 
Roman  citizens,  exhausted  for  a  time  this  source  of  revenue  by 
conferring  at  a  stroke  Roman  citizenship  on  every  free  subject 
of  the  empire  :  In  orbe  Romano  qui  sunt  ex  constitutione  impera- 
toris  Antonini  cives  Romani  effecti  sunt,  Dig.  1,  5,  17.  This  was 
not  a  general  manumission  of  slaves  nor  an  abolition  of  the  status  of 
Latin  or  alien,  but  a  grant  of  citizenship  to  all  existing  Latins 
and  aliens,  imposing  in  effect  a  capitation  tax  on  the  individuals, 
and  leaving  those  orders  to  be  again  replenished  by  subsequent 
manumissions  of  Latini  and  dediticii.  The  value  of  the  privileges 
of  civis  Romanus  was  gradually  declining.  The  political  portions 
of  civitas  had  been  extinguished  by  the  establishment  of  the  empire, 
and  Rome  was  destined  at  last  to  undergo  the  fate  she  had  inflicted 
on  so  many  other  cities.  She  was  sacked  by  Alaric,  king  of  the 
Goths,  A.  D.  410.  She  was  entered  by  Genseric,  king  of  the  Vandals, 
and,  after  a  sack  of  fourteen  days,  left  a  heap  of  ruins,  A.D.  455. 
The  splendour  of  the  title  of  civis  Romanus  was  sadly  dimmed  before 
Justinian  made  it  acquirable  by  every  form  of  manumission. 

§  94.  Subscriptio  was  an  imperial  rescript  written  under  the  peti- 
tion to  which  it  was  an  answer :  a  rescript  written  on  a  separate 
document  was  called  epistola.  The  latter  was  addressed  to  public 
functionaries,  the  former  to  private  individuals,  and  by  its  connexion 
with  the  petition  enabled  a  tribunal  to  which  it  was  submitted 
to  investigate  the  truth  of  the  allegations  on  which  it  was  founded. 
Cf.  §  5,  comm.  ;  and  see  Roby,  Private  Law,  Intr.  p.  6,  n.  2. 

The  grant  of  patria  potestas  by  the  Emperor  to  the  new-made 
citizen,  §  93,  may  be  assimilated  to  the  legislative  grant  of  patria 
potestas  in  adrogatio.  Its  different  effects  may  be  compared  with 


62  DE  PERSONIS  [i.  §§  97-107. 

the  incidents  of  Naturalization  and  Denization  in  English  law. 
Naturalization  formerly  only  effected  by  act  of  parliament  is  retro- 
spective, and  puts  an  alien  in  exactly  the  same  state  as  if  he 
had  been  born  in  the  king's  ligeance,  and  his  son  born  before 
the  naturalization  may  inherit :  whereas  the  issue  of  a  Denizen 
(an  alien  born  who  has  obtained  ex  donatione  regis  letters  patent 
to  make  him  an  English  subject)  cannot  inherit  to  him,  but  his 
issue  born  after  may.  Blackstone. 

§§  95,  96.  Before  the  recension  of  the  text  by  Studemund  Gaius 
was  supposed  to  have  denned  greater  Latinity  in  this  section  as  the 
right  whereby  the  magistrates  of  certain  towns  acquire  the  Roman 
franchise  along  with  their  wives  and  children,  and  lesser  Latinity 
as  the  right  whereby  the  magistrates  themselves  acquire  the  Eoman 
franchise,  but  not  their  wives  and  children.  The  distinction  made 
by  Gaius  between  these  two  kinds  of  Latinity  is  not  found  in  any 
other  writer  (cf.  note  to  Muirhead's  Gaius,  h.  1.). 

The  name  of  a  senate  in  a  municipality  was  ordo  decurionum 
or  simply  ordo  or  curia,  its  members  being  decuriones  or  curiales. 
The  office  of  decurio,  which  was  at  one  time  a  coveted  distinction, 
became  very  burdensome ;  and  in  order  to  make  it  more  acceptable, 
privileges  were  from  time  to  time  attached  to  it,  as  e.g.  Latium 
majus,  and  in  later  times  legitimatio  per  oblationem  curiae  (Inst. 
1,  10,  13).  (Dig.  50,  2  de  decurionibus.) 

It  is  to  be  noticed  that  the  jus  Latii  could,  according  to  Gaius,  §  95, 
be  constitutionally  granted  in  three  ways,  either  by  the  people  itself 
(in  Comitia),  or  by  the  senate  (representing  the  people),  or  by  the 
Emperor  (in  whom  the  power  of  the  people  was  to  a  great  extent  vested). 

DE  ADOPTIONIBVS. 

§   97.     I  Non    solum   tamen  §97.  Not  only  natural  children 

naturales  liber  i  secundum  ea  are  subject,  as  mentioned,  to  pa- 

quae    \    diximus    in    potestate  ternal  power,  but  also  adoptive 

nostra  sunt,  uerum  et  hi  quos  children, 
adoptamus.           Inst.  1,  11  pr. 

§  98.   Adoptio  autem  duobus  §  98.  Adoption  is  of  two  forms, 

modis  fit,  aut  populi   auctori-  adoption    by    authority    of    the 

tate,  aut  imperio   magistratus,  people    and     adoption     by    the 

ueluti  praetoris.  executive  command  of  a  magis- 

Inst   1111  trate,  as  of  the  praetor. 

§99.  Populi  auctoritateadop-  §  99p  Authority  of  the  people 

tamus  eos  qui  sm   mris  sunt;  is  required   for  the   adoption  of 

quae  species  adoptioms  dicitur  an  independent  person,  and  this 

adrogatio,  quia  et  is  qui  adoptat  form    is    called    adrogation,    be- 

rogatur,  id  est  interrogatur,  an  cause  the  adopter  is  interrogated 

uelit  eum  quern  adoptaturus  sit  whether  he  wishes  to  have  the 


I.  §§  97-107.] 


DE  ADOPTIONIBVS 


63 


iustum  sibi  filium  esse ;  et  is 
qui  adoptatur  rogatur  an  id 
fieri  patiatur;  et  populus  ro- 
gatur an  id  fieri  iubeat.  im- 
perio  magistratus  adoptamus 
eos  qui  in  potestate  parentum 
sunt,  siue  primum  gradum  li- 
berorum  optineant,  qualis  est 
filius  et  filia,  siue  inferiorem, 
qualis  est  nepos  neptis,  prone- 
pos  proneptis.  Inst.  1.  c. 


§  100.  Et  quidera  ilia  adop- 
tio  quae  per  populum  fit  nus- 
quain  nisi  Romae  fit  ;  at  haec 
etiam  in  prouinciis  apud  prae- 
sides  earum  fieri  solet. 


1.     Item    per    populum 
IP     •  i 

/lemmae  non  adoptantur,  nani 

jid  magis  placuit  ;  apud  prae- 
korem  uero  uel  in  prouinciis 
apud  proconsulem  legatumue 
etiam  feminae  solent  adoptari. 


§  102.  Item  inpuberem  apud 
populum  adoptari  aliquando 
prohibitum  est,  aliquando  per- 
missum  est ;  nunc  ex  epistula 
optimi  imperatoris  Antonini 
quam  scripsit  pontificibus,  si 
iusta  causa  adoptionis  esse  ui- 
debitur,  cum  quibusdam  condi- 
cionibus  permissum  est.  apud 
praetorem  uero  et  in  prouinciis 
apud  proconsulem  legatumue 
cuiuscumque  aetatis(  personas") 
adoptare  possumus. 

Inst.  1,11,3. 

§  103.  Ill-ud  utriusque  adop- 
tionis commune  est,  quod  et 
hi  qui  generare  non  possunt, 


person  adopted  for  his  lawful 
son,  the  person  adopted  is  inter- 
rogated whether  he  thereto  con- 
sents, and  the  people  (in  comitia) 
is  interrogated  whether  such  is 
its  command.  The  executive 
command  of  a  magistrate  is  the 
proceeding  for  the  adoption  of  a 
person  subject  to  the  power  of 
an  ascendent,  whether  a  de- 
scendent  in  the  first  degree,  as 
a  son  or  daughter,  or  in  a  re- 
moter degree,  as  a  grandson  or 
granddaughter,  great-grandson  or 
great-granddaughter. 

§  100.  Adoption  by  vote  of 
the  people  (in  comitia)  can  only 
be  solemnized  at  Borne,  the 
other  process  is  usually  effected 
in  the  provinces  in  the  court  of 
the  president. 

§  101.  Adoption  by  vote  of  the 
people  is  inapplicable  to  females, 
as  has  finally  been  ruled  ;  but 
females  may  be  adopted  by  the 
other  mode  of  adoption,  at  Koine 
in  the  court  of  the  praetor,  in  pro- 
vinces of  the  people  it  is  usually 
effected  in  the  court  of  the  pro- 
consul, in  provinces  of  the  em- 
peror in  the  court  of  the  legate. 

§  102.  The  legislative  adoption 
of  a  child  below  the  age  of 
puberty  by  vote  of  the  people 
was  at  one  time  prohibited,  at 
another  permitted  ;  at  the  present 
day,  by  the  epistle  of  the  Em- 
peror Antoninus  addressed  to  the 
pontifices,  on  evidence  of  a  just 
cause  of  adoption,  it  is  permitted, 
subject  to  certain  conditions.  In 
the  court  of  the  praetor  at  Rome, 
in  the  court  of  the  proconsul  in 
a  province  of  the  people,  and 
in  the  court  of  the  legate  in  a 
province  of  the  emperor,  a  person 
of  any  age  may  be  adopted. 

§  103.  Both  forms  of  adoption 
agree  in  this  point,  that  per- 
sons incapable  of  procreation  by 


DE  PERSONIS 


[i.  §§  97-107. 


quales  sunt  spadones,  adoptare 
possunt.  Inst.  1,  11,9. 

§  104.  Feminae  uero  nullo 
modo  adoptare  possunt,  quia  ne 
quidem  naturales  liberos  in 
potestate  habent. 

Inst.  1,11,10. 

§  105.  Item  si  quis  per  po- 
pulum  siue  apud  praetorem 
uel  apud  praesidem  prouinciae 
adoptauerit,  potest  eundem  alii 
in  adoptionem  dare. 

§  106.  Sed  et  ilia  quaestio, 
an  minor  natu  maiorem  natu 
adoptare  possit,  utriusque  ad- 
optionis  communes  est. 

§  107.  Illud  proprium  est 
eius  adoptionis  quae  per  popu- 
lum  fit,  quod  is  qui  liberos  in 
potestate  habet,  si  se  adro- 
gandum  dederit,  non  solum  ipse 
potestati  adrogatoris  subicitur, 
sed  etiam  liberi  eius  in  eiusdem 
fiunt  potestate  tamquam  ne- 
potes.  Inst.  1,11,11. 


natural  impotence  are  permitted 
to  adopt. 

§  104.  Women  cannot  adopt 
by  either  form  of  adoption,  for 
even  their  natural  children  are 
not  subject  to  their  power. 

§  105.  He  who  has  adopted  a 
person  either  by  the  vote  of  the 
people  or  by  the  authority  of 
the  praetor  or  of  the  president 
of  a  province,  can  transfer  his 
adoptive  son  to  another  adoptive 
father. 

§  106.  Whether  a  younger- 
person  can  adopt  an  older  is  a 
disputed  point  in  both  forms  of 
adoption. 

§  107.  It  is  peculiar  to  adoption 
by  the  vote  of  the  people  that 
children  in  the  power  of  the 
person  adrogated,  as  well  as  their 
father,  fall  under  the  power  of  the 
adrogator,  assuming  the  position 
of  grandchildren. 


Adrogation,  or  the  adoption  of  an  independent  person  (pater- 
familias), reducing  him  to  a  dependent  status  (filiusfamilias),  was  a 
legislative  act  of  the  Comitia  Curiata  ;  but  though,  as  representing 
the  people,  this  assembly  was  legally  omnipotent,  it  was  unconstitu- 
tional to  deprive  a  person  either  of  the  citizenship  or  of  domestic 
independence  without  his  own  consent.  We  learn  from  Cicero 
the  formula  by  which  this  assent  was  ascertained.  De  Domo,  29. 
'  As  it  is  an  immemorial  rule  of  law  that  no  citizen  of  Kome  shall  be 
deprived  of  the  independent  position  of  paterfamilias  or  of  citizenship 
against  his  will,  as  you  have  had  occasion  of  learning  by  your  own  ex- 
perience, for  I  suppose  that,  illegal  as  your  adrogation  was  in  all  points, 
you  at  least  were  asked  whether  you  consented  to  become  subject  to 
the  adrogator's  power  of  life  and  death  as  if  you  were  his  son  ; — if 
you  had  opposed  or  been  silent,  and  the  thirty  Curiae  had  neverthe- 
less passed  the  law,  tell  me,  would  their  enactment  have  had  any 
binding  force  ? '  The  form  in  which  the  law  was  proposed  to  the 
legislative  assembly  is  given  by  Gellius,  5,  19.  'Adrogation  is 
the  subjection  of  an  independent  person  with  his  own  consent  to  the 
power  of  a  superior,  and  is  not  transacted  in  the  dark  or  without 


I.  §§  97-107.]  DE  ADOPTIONIBVS  65 

investigation.  The  Comitia  Curiata,  at  which  the  College  of  Pon- 
tiffs is  present,  are  convened,  and  examine  whether  the  age  of  the 
adrogator  does  not  rather  qualify  him  for  the  natural  procreation  of 
children,  and  whether  the  estate  of  the  adrogatus  is  not  the  object 
of  fraudulent  cupidity,  and  an  oath,  said  to  be  framed  by  Q.  Mucius, 
the  high  pontiff,  has  to  be  taken  by  the  adrogator.  .  .  .  Adroga- 
tion,  the  name  given  to  this  transmit  into  a  strange  family,  is 
derived  from  the  interrogation  of  the  legislative  body,  which  is  in 
the  following  form  :  '  May  it  please  you  to  will  and  command  that 
L.  Valerius  shall  be  as  completely  by  law  and  statute  the  son  of 
L.  Titius  as  if  he  were  born  of  L.  Titius  and  his  wife,  and  that 
L.  Titius  shall  have  power  of  life  and  death  over  L.  Valerius  as 
a  father  has  over  his  son.  Do  you  will  and  command  as  I  have 
said,  Quirites?'  Those  who  voted  in  affirmation  of  the  measure 
proposed  said  (at  least  in  other  similar  assemblies) :  Uti  rogas  ;  those 
who  voted  against  it  said :  Antique.  Women  were  originally  in- 
capable of  being  adrogated,  §  101,  because  they  were  incapable  of 
appearing  in  the  Comitia  Curiata,  Quoniam  cum  feminis  nulla  comi- 
tiorum  communio  est,  Gellius,  ibid.  ;  but  this  incapacity  vanished 
as  soon  as  the  lex  Curiata,  as  form  of  adrogation,  was  superseded  by 
imperial  rescript  (principale  rescriptum),  Gaius  in  Dig.  1,  7,  21. 
Women,  being  incapable  of  exercising  parental  power,  could  not, 
properly  speaking,  adrogate,  §  104  ;  but  they  were  permitted,  under 
Diocletian  A.D.  291,  by  quasi  adrogation  to  establish  the  same  legal 
relation  as  existed  between  a  mother  and  her  natural  children,  Cod. 
8,  48,  5;  Inst.  1,  11,  10.  An  adrogator  was  usually  required  to  be 
sixty  years  old,  Dig.  1,  7,  15,  2,  and  to  be  eighteen  years  (plena 
pubertate)  older  than  adrogatus,  Inst.  1,  11,  4.  Originally  a  youth 
must  have  attained  the  age  of  puberty  before  he  could  be  adrogated, 
§  102,  and  Gellius,  ibid.  :  Sed  adrogari  non  potest  nisi  jam  vesticeps 
.  .  .  quoniam  tutoribus  in  pupillos  tantam  esse  auctoritatem  pote- 
statemque  fas  non  est,  ut  caput  liberum  fidei  suae  commissum  alienae 
ditioni  subiciant.  '  A  youth  cannot  be  adrogated  before  he  has 
assumed  the  toga  virilis,  because  a  guardian  has  no  authority  or 
power  to  subject  an  independent  person,  with  whose  charge  he  is 
entrusted,  to  the  domination  of  a  stranger.'  The  purple-edged  praetexta 
was  generally  laid  aside  by  boys  along  with  the  bulla  aurea  which 
they  wore  round  their  neck,  on  the  first  Liberalia,  the  17th  March, 
Ovid,  Fasti,  3,  771,  after  the  completion  of  their  fourteenth  year. 
Females  did  not  lay  aside  the  praetexta  till  their  marriage.  Anto- 
ninus Pius  permitted  the  adrogation  of  youths  below  the  age  of 
puberty  (impubes,  investis)  under  certain  conditions ;  e.  g.  the  adro- 
gator entered  into  a  stipulation,  originally  with  a  public  slave,  in 
later  times  with  a  public  notary  (tabularius),  in  the  event  of  the 


WH1TTUCK 


66  DE  PERSONIS  [i.  §§  108-115  6. 

death  of  adrogatus  before  the  age  of  puberty,  to  restore  his  estate 
to  his  natural  heirs,  and,  in  the  event  of  emancipation,  to  adrogatus 
himself:  and  adrogatus  became  entitled  to  a  fourth  part  of  the 
estate  of  adrogator  (called  quarta  Antonini),  of  which  he  could  not 
be  deprived  by  disinherison  or  by  unmerited  emancipation,  §  102  ; 
cf.  Inst.  1,  11,  3.  In  the  time  of  Justinian  the  adrogator  only 
acquired  a  usufruct  for  life  in  the  property,  subject  to  which  the 
adrogatus  was  owner  of  it ;  that  is  to  say,  the  property  of  adrogatus 
was  transformed  by  adrogation  into  peculium  adventicium.  Cf. 
3,  84,  comm. 

The  form  of  simple  adoption  is  explained  below,  §  134,  under  the 
head  of  dissolution  of  patria  potestas,  for  as  patria  potestas  is  vested 
by  adoption  in  the  adoptive  father,  so  it  is  divested  from  the  natural 
father. 

The  effect  of  adoption  was  much  reduced  by  a  constitution  of 
Justinian.  If  the  adoption  was  by  an  ascendent,  maternal  or 
paternal,  it  retained  its  old  character  :  but  if  it  was  by  a  stranger 
it  neither  created  nor  extinguished  patria  potestas ;  it  did  not 
transfer  the  adopted  son  from  his  old  family  into  a  new  family,  and 
therefore  it  neither  destroyed  nor  created  any  tie  of  agnation :  its 
only  effect  was  to  give  to  the  adopted  son,  in  the  event  of  intestacy, 
a  claim  against  the  estate  of  the  intestate  adoptive  father ;  Cod.  8, 
47,  10  ;  Inst.  1,  11,  2  and  3,  1,  14. 

DE  MANY. 

§  108.     Nunc   de   his    per-  §  108.  Let  us  next  proceed  to 

sonis  uideamus  quae  in  manu  consider  what  persons  are  subject 

nostra  sunt.     quod  \  et  ipsum  to  the  hand,  which  also  relates 

ius    proprium    ciuium    Roma-  to  law  quite  peculiar  to  Roman 

norum  est.  citizens. 

§  109.    Sed  in  potestate  qui-  §  109.  Power  is  a  right  over 

dem    et    masculi     et    feminae  males  as  well  as  females:  hand 

esse  solent ;  in  manum  autem  relates  exclusively  to  females, 
feminae  tantum  cowueniunt. 

§  110.    Olim    itaque    fribus  §  no.    In  former  days  there 

modis  in  manum  conueniebant,  were  three  modes  of  becoming 

usu  farreo  coemptione.  subject  to  hand,  use,  confarrea- 

tion,  coemption. 

§  111     Usu  in  manum  con-  §ul  Uge inyested the husband 

uemebat   quae  anno  continue  with  right  of  hand  after  a  whole 

nuptaperseuerabat;  qmaernm  year  of  unbroken  cohabitation, 

ueluti  annua  possessions  usuca-  guch  annual  possession  operated 

piebatur,  in  familiam  uiri  trans-  a  kind  of  usucapion,  and  brought 

ibat  filiaeque  locum  optinebat.  the  wife  into  the  family  of  the 

itaque  lege  XII  tabularum  cau-  husband,  where  it  gave  her  the 


I.  §§  108-115  &.] 


DE  MANY 


turn  est,  ut  si  qua  nollet  eo 
modo  in  manum  raariti  con- 
uenire,  ea  quotannis  trinoctio 
abesset  atque  eo  modo  (usum) 
cuiusque  anni  interrumperet. 
sed  hoc  totuua  ius  partim  legi- 
bus  sublatum  est,  partim  ipsa 
desuetudine  oblitteratum  est. 


§  112.  Farreo  in  manum  con- 
ueniunt  per  quoddam  genus 
sacrificii,  quod  loui  Farreo  fit ; 
in  quo  farreus  panis  adhibetur, 
unde  etiam  confarreatio  dicitur; 
conplura  praeterea  huius  iuris 
ordinandi  gratia  cum  certis  et 
sollemnibus  uerbispraesentibus 
decem  testibus  aguntur  et  fiunt. 
quocZ  ius  etiam  nostris  tempori- 
bus  in  usu  est ;  nam  flamines 
maiores,  id  est  Diales  Martiales 
Quirinales,  item  reges  sacro- 
rum  nisi  ex  farreatis  nati  -non 
leguntur ;  ac  ne  ipsi  quidem 
sine  confarreatione  sacerdotium 
habere  possunt. 


§  113.  Coemptione  uero  in 
manum  conueniunt  per  manci- 
pationem,  id  est  per  quandam 
imaginariam  uenditionem ;  nam 
adhibitis  non  minus  quam  V 
testibus  ciuibus  Romanis  pube- 
ribus,  item  libripende,  emit  is 
mulierem,  cuius  in  manum  con- 
uenit. 

§  114.  fotest  autem  coem- 
ptionem  facere  mulier  non  so- 
lum  cum  marito  suo,  sed  etiam 
cum  extraneo  ;  scilicet  aut  ma- 
trimonii  causa  facta  coemptio 
dicitur  aut  fiduciae  ;  quae  enim 
cum  marito  suo  facit  coem- 
ptionem,  (u£)  apud  eum  filiae 


status  of  a  daughter.  Accordingly, 
the  law  of  the  Twelve  Tables 
provided  that  a  wife  who  wished 
to  avoid  subjection  to  the  hand 
of  the  husband  should  annually 
absent  herself  three  nights  from 
his  roof  to  bar  the  annual  usuca- 
pion :  but  the  whole  of  this  law 
has  been  either  partly  abolished 
by  statute,  or  partly  obliterated 
by  mere  disuse. 

§  112.  Confarreation,  another 
mode  in  which  subjection  to 
hand  originates,  is  a  sacrifice 
offered  to  Jupiter  Farreus,  in 
which  they  use  a  cake  of  spelt, 
whence  the  ceremony  derives  its 
name,  and  various  other  acts  and 
things  are  done  and  made  in  the 
solemnization  of  this  disposition 
with  a  traditional  form  of  words, 
in  the  presence  of  ten  witnesses : 
and  this  law  is  still  in  use,  for 
the  functions  of  the  greater 
flamens,  that  is,  the  flamens  of 
Jove,  of  Mars,  of  Quirinus,  and 
the  duties  of  the  ritual  king,  can 
only  be  performed  by  persons 
born  in  marriage  solemnized  by 
Confarreation.  Nor  can  such  per- 
sons themselves  hold  a  priestly 
office  if  they  are  not  married  by 
Confarreation. 

§  113.  In  coemption  the  right 
of  hand  over  a  woman  attaches 
to  a  person  to  whom  she  is  con- 
veyed by  a  mancipation  or  imagi- 
nary sale  :  for  the  man  purchases 
the  woman  who  comes  into  his 
power  in  the  presence  of  at  least 
five  witnesses,  citizens  of  Kome 
above  the  age  of  puberty,  besides 
a  balance  holder. 

§  114.  By  coemption  a  woman 
may  convey  herself  either  to  a 
husband  or  to  a  stranger,  that  is  to 
say  there  are  two  forms  of  coemp- 
tion, matrimonial  and  fiduciary. 
A  coemption  with  a  husband  in 
order  to  acquire  the  status  of 
daughter  in  his  house  is  a  matri- 


F  a 


68 


DE  PERSONIS 


[i.  §§108-1156. 


loco  sit,  dicitur  matrimonii 
causa  fecisse  coemptionem ; 
quae  uero  alterius  rei  causa 
facit  coemptionem  aut  cum 
uiro  suo  aut  cum  extraneo, 
ueluti  tutelae  euitandae  causa, 
dicitur  fiduciae  causa  fecisse 
coemptionem : 

§  115.  quod  est  tale:  si  qua 
uelit  quos  habet  tutores  depo- 
nere  et  alium  nancisci,  illis  auc- 
toribus  coemptionem  facit ;  de- 
inde  a  coemptionatore  reman- 
cipata  ei  cui  ipsa  uelit,  et  ab 
eo  uindicta  manumissa  incipit 
eum  habere  tuforem,  (a)  quo 
manumissa  est ;  qui  tutor  fidu- 
ciarius  dicitur,  sicut  inferius 
appare6it. 


monial  coemption:  a  coemption 
for  another  purpose,  whether  with 
a  husband  or  with  a  stranger,  for 
instance,  for  avoiding  a  guardian- 
ship, is  a  fiduciary  coemption. 


§  1 1 5.  This  is  accomplished  by 
the  following  process :  the  woman 
who  desires  to  set  aside  her 
present  guardians  and  substitute 
another  makes  a  coemption  of 
herself  to  some  one  with  their 
sanction :  thereupon  the  party  to 
this  coemption  remancipates  her 
to  the  person  intended  to  be  sub- 
stituted as  guardian,  and  this 
person  manumits  her  by  the  form 
of  vindicta,  and  in  virtue  of  this 
manumission  becomes  her  guar- 
dian, being  called  a  fiduciary 
guardian,  as  will  hereafter  be 
explained. 

§  1 1 5  a.  In  former  times  testa- 
mentary capacity  was  acquired  by 
fiduciary  coemption,  for  no  woman 
was  competent  to  dispose  of  her 
property  by  will,  with  the  excep- 
tion of  certain  persons,  unless  she 
had  made  a  coemption,  and  had 
beenremancipated  andthenmanu- 
mitted:  but  this  necessity  of  co- 
emption was  abolished  by  a  sena- 
tusconsult  made  on  the  motion  of 
Hadrian,  of  divine  memory. 

§  1 15  &.  Even  if  a  woman  makes 
only  a  fiduciary  coemption  with 
her  husband,  she  acquires  the 
status  of  his  daughter,  for  it  is 
held  that  from  whatever  cause 
a  woman  is  in  the  hand  of  her 
husband,  she  acquires  the  position 
of  his  daughter. 

In  early  Eoman  law  a  woman  on  marriage  necessarily  passed  out 
of  her  own  agnatic  family  into  that  of  her  husband,  taking  the  place 
of  a  filiafamilias  in  it.  If  her  husband  was  paterfamilias,  she 
came  into  his  hand,  if  he  was  filiusfamilias  into  that  of  his  father. 
This  power  (manus)  was  the  same  in  its  nature  as  patria  potestas. 


§  115  a.  Olim  etiam  testa- 
menti  faciendi  gratia  fiduciarm 
fiebat  coemptio  ;  tune  enim  non 
aliter  feminae  testamenti  fa- 
ciendi ius  habebant,  exceptis 
quibusdam  personis,  quam  si 
coemptionem  fecissent  remanci- 
pataeque  et  manumissae  fuis- 
sent :  sed  hanc  necessitatem 
coemptionis  faciendae  ex  aucto- 
ritate  diui  Ha|driani  senatus 
remisit. 

§  1 15  b. 1  femina > 

fi|duciae  causa  cum  mro  suo 
fecerit  coemptionem,  nihilo  mi- 
nus filiae  loco  incipit  esse  ;  nam 
si  omnino  qualibet  ex  causa 
uxor  in  manu  uiri  sit, 
earn  filiae  iura  nancisci. 


i.  §§108-115  6.]  DE  MANY  69 

By  manus  the  husband,  or  the  husband's  father,  had  power  of  life  and 
death  over  the  wife,  Livy,  39, 18  ;  Tac.  Ann.  1 3,  32  ;  and  all  the  property 
of  the  wife,  even  more  absolutely  than  by  the  common  law  of  English 
jurisprudence,  vested  in  the  husband  or  his  paterfamilias,  2  §  98. 

The  patriarchs  of  the  Koman  nation  could  probably  not  conceive 
of  the  conjugal  union  as  disjoined  from  manus.  Yet  at  a  very  early 
period  of  Roman  history  these  were  recognized  as  separable,  and  in 
later  times  they  were  almost  universally  dissociated,  and  wedlock 
was  unaccompanied  by  manus.  In  a  marriage  celebrated  without 
confarreation  and  without  coemption  before  the  expiration  of  the 
first  year  of  cohabitation,  there  was  civil  wedlock  without  manus,  and 
the  Twelve  Tables  provided  a  method  (trinoctio  abesse)  by  which  this 
state  could  be  indefinitely  prolonged,  §111:  and  as  soon  as  gentile 
marriages  were  recognized  by  the  law  the  Romans  were  still  more 
familiarized  with  the  spectacle  of  lawful  matrimony  without  manus. 
As  the  ages  advanced  the  wife  acquired  more  and  more  indepen- 
dence ;  manus  was  almost  obsolete  in  the  time  of  Gaius,  and  it  has 
quite  vanished  from  the  legislation  of  Justinian.  (For  a  detailed 
account  of  the  law  of  marriage  see  Sohm,  pp.  470-498.) 

Confarreation  was  a  form  of  marriage  which  made  the  issue 
eligible  for  certain  high  sacerdotal  functions,  and  may  therefore  be 
regarded  as  characteristic  of  the  patrician  caste.  Originally  it  prob- 
ably produced  marital  power  in  its  full  extent ;  but  when  Augustus, 
B.  c.  10,  after  a  vacancy  of  seventy-five  years,  renewed  the  priesthood 
of  Jove  (flaminium  diale)  he  limited  by  statute  the  legal  effect  of 
confarreation  in  that  particular  instance,  §  136;  and  Tiberius,  A.D.  23, 
extended  the  limitation  to  all  future  cases  of  confarreation,  Tac. 
Ann.  4,  1 6.  Henceforth  it  only  operated  a  change  of  family  in  respect 
of  sacred  rites  (sacra):  the  woman  ceased  to  have  the  domestic  gods 
and  domestic  worship  of  her  father,  and  took  in  exchange  the 
domestic  gods  and  domestic  worship  of  her  husband.  But  in 
secular  matters  her  family  was  unchanged :  she  remained,  if  filia- 
familias,  subject  to  patria  potestas,  and  did  not  become  quasi  filia- 
familias  in  the  household  of  her  husband :  her  old  ties  of  agnation 
in  her  father's  family  were  not  snapped,  and  no  new  ties  of  agna- 
tion in  her  husband's  family  were  acquired.  Divorce  (diffarreatio, 
Festus,  s.v.)  was  almost  impossible,  and  this  indissol  ability  of  the 
connexion  contributed  to  the  unpopularity  of  confarreatio.  More- 
over, it  was  a  religious  ceremonial,  requiring  the  presence  of  the 
pontifex  maximus  and  flamen  dialis,  and  as  such  it  vanished  with 
vanishing  paganism.  The  ten  witnesses  apparently  represented  the 
ten  curiae  of  which  the  tribe  was  composed,  or  the  ten  gentes  of 
which  the  curia  was  composed,  or,  if  the  decimal  division  continued 
further,  the  ten  families  of  which  the  gens  was  composed. 


70  DE  PERSONIS  [i.  §§  108-115  b. 

The  purchase  of  the  wife  by  the  husband,  a  widespread  custom  in  a 
primitive  state  of  society,  was  no  doubt  one  of  the  ways  in  which  Koman 
marriage  originated.  The  exact  nature  of  Coemption,  in  consequence 
of  the  defective  state  of  the  Veronese  manuscript,  must,  however, 
remain  a  mystery.  Coemption  was  a  form  of  mancipation,  §  113,  but 
in  virtue  of  the  provision  of  the  Twelve  Tables,  Cum  nexum  faciet 
mancipiumque,  uti  lingua  nuncupassit,  ita  jus  esto,  the  nature  of  every 
mancipation  depended  on  the  mancipii  lex,  the  accompanying  nuncu- 
pation or  verbal  declaration  of  its  condition,  intentions,  purposes  ;  as 
in  English  conveyancing  the  nature  of  a  grant  is  limited  and  deter- 
mined by  the  habendum  and  tenendum  of  the  deed.  We  are  informed 
that  in  coemption,  the  formula  was  not  the  same  as  in  other  mancipa- 
tions, §  123,  but  we  are  not  informed  what  it  was.  Even  in  Cicero's 
time  many  advocates  were  ignorant  of  the  legal  effect  of  a  coemption 
because  they  were  ignorant  of  the  precise  terms  of  the  formula  in 
which  it  was  concluded,  De  Orat.  1,  56.  The  word  itself  may  suggest 
a  conjecture  that  it  was  a  conveyance  of  the  husband  to  the  wife  as 
well  as  of  the  wife  to  the  husband  ;  and  this  is  supported  by  Servius 
on  Georgics,  1,  34,  and  Isidorus,  5,  24,  no  great  authorities,  but  who 
quoted  apparently  from  Ulpian  :  '  An  ancient  nuptial  form  wherein 
husband  and  wife  made  a  mutual  purchase,  to  bar  the  inference 
that  the  wife  became  a  slave.'  Plutarch  informs  us  that  the  wife 
asserted  her  equality  by  the  terms,  Ubi  tu  Caius,  ego  Caia,  Quaest. 
Eom.  28:  'Where  thou  art  master,  I  am  mistress.'  Boethius  on 
Cicero,  Topica,  3,  1 4,  quoting  from  Ulpian,  says :  '  The  man  and 
woman  interrogated  one  another.  He  asked  her  if  she  wished  to 
be  mother  of  his  household  ;  she  answered,  Yes.  She  asked  him 
if  he  wished  to  be  father  of  her  household ;  he  answered,  Yes. 
And  thus  the  woman  passed  into  the  hand  of  the  man,  and  was 
called  the  mother  of  his  household,  with  the  status  of  filiafamilias.' 
According  to  Cicero,  the  wife  was  only  called  materfamilias  when 
subject  to  hand :  Genus  est  uxor ;  ejus  duae  formae  ;  una  matrum- 
familias,  eae  sunt,  quae  in  manum  convenerunt,  altera  earum  quae 
tantummodo  uxores  habentur,  Top.  3,  14.  Gellius  says  the  same, 
18,  6,  7  :  Tradiderunt  matremfamilias  appellatam  esse  earn  solam 
quae  in  mariti  manu  mancipioque  aut  in  ejus,  in  cujus  maritus  manu 
mancipioque  esset.  Boethius  (in  Cic.  Top.  3,  14)  further  limits  the 
title  to  a  wife  who  has  become  subject  to  manus  by  coemption  : 
Quae  autem  in  manum  per  coemptionem  convenerant,  hae  matres- 
familias  vocabantur,  quae  vero  usu  et  farreatione,  minime,  ibid. 
However  this  may  have  been,  in  one  sense  the  name  was  a  mis- 
nomer, for  a  wife  subject  to  hand  was  not  sui  juris  (materfamilias), 
but  alieni  juris  (filiafamilias) :  and  that  materfamilias  denoted  a 
woman  sui  juris,  whether  married  or  unmarried,  as  opposed  to 


i.  §§108-115  6.]  DE  MANY  71 

a  filiafamilias  or  woman  alieni  juris,  appears  from  Ulpian  (4,  1) :  Sui 
juris  sunt  familiarum  suarum  principes,  id  est  paterfamiliae  itemque 
materfamiliae.  (See  Muirhead's  Eoman  Law,  App.  B.) 

If  the  wife  was  subject  to  the  power  of  her  father,  she  required 
his  sanction  before  she  could  make  a  coemption  with  her  husband.  If 
the  wife  was  independent  of  parental  control,  she  required  the 
sanction  of  her  guardians,  who  under  the  old  law  would  have  been 
her  nearest  agnates. 

Coemption  was  sometimes  employed  for  other  purposes  than 
matrimony,  and  was  then  called  fiduciary  coemption.  Sometimes 
the  intention  was  to  extinguish  the  obligation  of  onerous  sacred 
rites  attached  to  the  estate  of  an  heiress  :  Jure  consultorum  ingenio 
senes  ad  coemptiones  faciendas  interimendorum  sacrorum  causa  re- 
perti  sunt,  Cic.  Pro  Murena,  12,  §  27.  'Juristic  ingenuity  invented 
coemptions  with  aged  men  for  extinguishing  sacred  rites.'  Savigny 
(Verm.  Schr.  1,  190)  gives  the  following  conjectural  explanation  of 
the  process.  The  obligation  to  the  sacra  belonged  to  the  Quiritary 
ownership  of  the  universitas  of  the  woman's  estate.  This,  by  the 
effect  of  coemption,  vested  in  the  coemptionator,  an  old  man  ap- 
proaching dissolution  (senex  coemptionalis),  with  whom  a  fictitious 
marriage  was  contracted,  and  who  took  the  estate  as  universal 
successor.  He  forthwith  dismissed  the  woman  from  his  manus  by 
remancipation  and  manumission :  and  then,  according  to  covenant, 
restored  to  her  the  estate  in  portions ;  that  is,  released  from  the 
ritual  obligations,  which  only  attached  to  the  universitas.  On  his 
death,  as  Quiritary  owner  of  the  empty  universitas,  the  obligation 
to  the  rites  was  extinguished  :  for  the  succession  (hereditas)  to  the 
coemptionator  did  not  pass  to  the  woman,  as  she  by  remancipation 
had  ceased  to  be  [such  was  the  hypothesis  of  Savigny  before  the 
discovery  of  Gaius:  instructed  by  Gaius  we  must  rather  say,  as 
mere  fiduciary  coemption  had  not  the  effect  of  making  her]  his 
filiafamilias  and  sua  heres.  The  phrase  senex  coemptionalis  denotes 
a  slave.  From  which  it  may  be  inferred  that  a  slave,  useless  for 
any  other  purpose,  and  therefore  very  cheap,  was  sometimes  bought 
and  manumitted  to  serve  as  coemptionator.  In  such  a  case  the 
whole  transaction  would  be  very  inexpensive,  if  not  very  decorous. 
This  mode  of  getting  rid  of  sacred  rites  is  compared  by  Ihering, 
§  58,  with  the  institution  of  a  slave  as  heir  to  bear  the  infamy 
of  bankruptcy  instead  of  the  deceased  testator,  2  §  154.  Universal 
succession  was  an  institution  which  Koman  law  only  admitted  in 
certain  cases,  2  §  98,  including  the  cases  of  Manus  and  Adrogatio. 
If  universal  succession  was  required  for  the  purpose  of  extinguishing 
the  obligation  to  sacred  rites  attaching  to  the  estate  of  an  heiress,  we 
might  have  supposed  that  Adrogatio  would  have  been  a  less  offensive 


72  DE  PERSONIS  [i.  §§  108-115  6. 

mockery  than  a  fictitious  marriage  (fiduciary  coemption) ;  adrogatio, 
however,  was  inapplicable,  because,  as  we  have  seen,  up  to  a  late 
period  of  Roman  law  women  were  incapable  of  being  adrogated. 
Moreover,  the  Pontifices,  who  had  a  veto  on  adrogations,  were  not 
likely  to  lend  themselves  readily  to  the  extinction  of  sacred  rites. 
(Comments  of  other  modern  writers  on  this  subject  are  noticed  in 
Roby's  Roman  Private  Law,  1,  71,  n.  1.) 

At  other  times  Coemption  was  employed  to  enable  a  woman  to 
select  a  guardian,  §§  115,  195  a.  Cic.  Pro  Murena,  12  §  27.  'There 
are  many  wise  legal  provisions  that  juristic  ingenuity  has  defeated 
and  perverted.  All  women  on  account  of  their  weakness  of  judge- 
ment were  placed  by  our  ancestors  under  a  guardian's  control : 
jurists  invented  a  kind  of  guardian  subject  to  female  dictation.' 
(Cf.  Sohm,  103,  n.  2.) 

The  latest  employment  of  Coemption  enabled  a  woman  to  break 
the  ties  of  agnation  and  thus  acquire  testamentary  capacity,  §  1 1 5  a ; 
Cic.  Top.  4,  1 8.  The  coemptionator  (party  to  the  coemption)  in  virtue 
of  the  manus  thereby  acquired  was  able,  and  by  a  fiducia  or  trust  was 
bound,  to  sell  the  woman  into  bondage  as  if  she  were  filiafamilias : 
accordingly  he  remancipated  her  to  a  third  person,  who  by  manumit- 
ting her  in  accordance  with  another  fiducia  became  her  patron,  and  as 
patron,  in  accordance  with  the  Twelve  Tables,  §§  165,  166,  her  statu- 
tory guardian  (tutor  legitimus),  and,  as  having  acted  under  a  fiducia, 
her  fiduciary  guardian,  §  1 1 5.  It  may  occur  to  us  that  as  coemptio 
required  the  sanction  of  a  father  or  guardian,  this  process  could  not 
be  of  much  use  in  getting  rid  of  a  guardian  or  defeating  the  claims 
of  agnatic  guardians  to  a  woman's  intestate  succession  ;  but  it  must 
be  remembered  that  the  nearest  agnate,  who  alone  was  heir  and 
guardian,  was  a  variable  person,  and  that  a  given  nearest  agnate 
might  be  not  indisposed  to  allow  a  woman  to  acquire  the  free  dis- 
position of  her  property  and  to  defeat  the  claims  of  those  who,  after 
his  death,  would  be  nearest  agnates  and  presumptive  heirs.  At  all 
events,  however  indisposed  the  guardian  might  be  to  such  a  course, 
a  period  at  last  arrived  when  the  auctoritas  of  the  guardian,  though 
still  required  as  a  formality,  could  be  extorted,  if  not  yielded  volun- 
tarily, by  appeal  to  the  magistrate,  §  190. 

Agnatic  guardianship  of  female  wards  was  abolished  by  a  lex 
Claudia,  §171,  and  thus  the  woman  would  be  free  from  the  control 
of  an  interested  guardian  in  the  disposition  of  her  property  during 
her  lifetime.  She  would  still  however  have  had  little  more  than 
a  life  interest  until  she  acquired  the  power  of  testation.  For  when 
wills  could  be  only  executed  in  the  comitia,  2  §  101,  she  would  be 
excluded  from  testation,  as  well  as  from  adrogation,  by  exclusion  from 
the  comitia  :  and  after  the  introduction  of  the  mancipatory  will  she 


I.  §§108-115  6.]  DE  MANY  73 

was  still  barred  by  her  agnates'  indefeasible  claims  to  her  reversion. 
Agnation  itself,  however,  was  defeasible  by  means  of  coemptio  and 
remancipatio  and  the  consequent  capitis  minutio ;  and  when  the 
auctoritas  of  the  guardian  for  these  proceedings  could  be  extorted,  §  1 90, 
the  woman  had  practically  acquired  power  of  testation,  although  its 
exercise  was  hampered  by  a  tedious  formality,  which  was  not  abolished 
by  the  emperor  Claudius  when  he  abolished  agnatic  guardianship. 
It  was  not  till  the  senatusconsult  of  Hadrian  that  the  rupture  of 
the  ties  of  agnation  by  means  of  coemptio  ceased  to  be  necessary  to 
the  validity  of  a  woman's  will,  §115a;2§§112,  118;  though  it  had 
probably  been  previously  a  mere  formality  (the  woman  having  power 
to  extort  at  pleasure  the  auctoritas  of  the  agnatic  guardian)  even  before 
the  time  of  Claudius.  As  we  learn  from  the  text  coemption  had  not 
been  required  previously  in  the  case  of  certain  privileged  women. 
Cf.  §§  145,  194  ;  3  §  44  ;  Ulp.  29,  3. 

§  114.  Fiducia  was  a  declaration  of  the  trusts  of  a  mancipation, 
by  which  the  party  to  whom  the  mancipation  was  made  undertook 
to  remancipate  under  certain  conditions.  Besides  its  use  in  co- 
emption, it  was  employed,  as  we  shall  see  presently,  in  emancipation 
and  adoption,  and  was  the  earliest  form  of  constituting  the  contracts 
of  deposit  and  mortgage,  2  §§  59,  60 ;  3  §§  90,  91,  comm. 

The  pactum  fiduciae,  or  agreement  by  which  the  conditions  or  trusts 
were  defined,  must  not  be  identified  with  nuncupatio.  Nuncupatio 
forms  an  integral  part  of  Mancipatio,  and  what  was  declared  in  it 
would  constitute  a  title  under  the  law  of  the  Twelve  Tables.  Pactum 
fiduciae,  on  the  other  hand,  never  coalesces  with  Mancipatio,  but 
remains  a  separate  adjunct,  originally  only  morally  binding  on  the 
transferee,  but  afterwards  forming  an  obligation  of  jus  gentium,  and 
affording  ground  to  support  a  bonae  fidei  actio.  Herein  Mancipatio  is 
contrasted  with  Tradition  and  the  dispositions  of  natural  law.  Con- 
ventions accompanying  Tradition  unite  with  it,  and  form  a  single  con- 
solidated disposition  ;  and  the  pacts  annexed  (pacta  adjecta)  to  any 
contract  of  natural  law  (venditio,  conductio,  mandatum,  &c.)  become 
integral  parts  thereof,  and  are  enforced  by  the  action  brought  on  the 
principal  contract.  Stipulatio,  as  a  civil  disposition,  seems  to  have 
originally  resembled  Mancipation  in  this  respect :  at  least  it  was  a 
late  period  of  the  law  when  the  rule  was  clearly  established  that : 
Pacta  incontinent!  facta  stipulation!  inesse  creduntur,  Dig.  12,  1,  40, 
i.  e.  Pacts  made  contemporaneously  with  a  stipulation  are  deemed  to 
be  portions  of  the  stipulation.  Savigny,  §  268.  It  is  true  that 
a  Pactum  adjectum  respecting  interest  and  annexed  to  the  gentile 
disposition  Mutuum  could  not  be  enforced  by  an  action  brought  upon 
the  Mutuum:  but  that  was  a  consequence  of  the  nature  of  the 
action  (condictio  certi)  whereby  Mutuum  was  enforced,  and  which 


74 


DE  PERSONIS 


[i.  §§  116-123. 


could  not   embrace  any  sum  beyond  the  original  subject   of  the 
Mutuum ;  3  §§  90,  91,  comm. 


DE  MANCIPIO. 


§  116.  Superest  ut  expona- 
mus  quae  personae  in  manciple 
sint. 

§  117.  Omnes  igitur  libero- 
rum  personae  siue  masculini 
siue  femimni  sexus  quae  in 
potestate  parentis  sunt  manci- 
pari  ab  hoc  eodem  modo  pos- 
sunt,  quo  etiam  serui  manci- 
pari  possunt. 

§  1 18.  Idem  iuris  est  in  earum 
personis  quae  in  manu  sunt ;  | 
coemptionatoribus  eo- 


dem modo  possunt 


-apud 


coemptionatorem  fi|liae  loco  sit 

nupta    sit, nihilo 

minus  etiam  quae  ei  nupta 
non  sit  nee  ob  id  filiae  loco  sit, 
ab  eo  mancipari  possit. 


§  118  a.  Plerumque  (uero 
turn)  solum  et  a  parentibus  et 
a  coemptionatoribus  mancipan- 
tur,  cum  uelint  parentes  coem- 
ptionatoresque  (ex}  suo  iure 
eas  personas  dimittere,  sicut 
inferius  euidentius  apparebit. 

§  119.  Est  autem  manci- 
patio,  ut  supra  quoque  diximus, 
•imaoinaria  quaedam  uenditio  ; 
quod  et  ipsum  ius  proprium 
ciuium  Romanorum  est,  eaque 
res  ita  agitur:  adhibitis  non 
minus  quam  quinque  testibus 
ciuibus  Romanis  puberibus  et 
praeterea  alio  eiusdem  condi- 
cionis,  qui  libram  aeneam  te- 
neat,  qui  appellatur  libripens, 
is  qui  mancipio  accipit,  aes 


§  116.  It  remains  to  examine 
what  persons  are  held  in  man- 
cipation. 

§  1 17.  All  children,  male  or  fe- 
male, in  the  power  of  their  father 
are  liable  to  be  mancipated  by 
their  father  just  as  his  slaves  may 
be  mancipated. 


§  118.  A  woman  in  the  hand  is 
subject  to  the  same  mode  of  aliena- 
tion, and  may  be  mancipated  by 
the  person  who  has  acquired  her 
by  coemption  just  as  a  daughter 
may  be  mancipated  by  her  father : 
and  although  the  acquirer  of  her 
by  coemption  otherwise  than  for 
the  purpose  of  marriage  has  not 
the  power  of  a  father  over  her, 
nevertheless,  though  he  is  not  her 
husband,  and  therefore  has  not 
the  status  of  a  father,  he  can  dis- 
pose of  her  by  mancipation. 

§  1 1 8  a.  Almost  the  sole  occa- 
sion of  mancipation  by  a  parent 
or  by  the  acquirer  of  a  woman  by 
coemption  is  when  the  parent  or 
acquirer  by  coemption  designs  to 
liberate  the  person  mancipated 
from  his  lawful  control,  as  will 
presently  be  more  fully  explained. 

§  119.  Mancipation,  as  before 
stated,  is  an  imaginary  sale,  belong- 
ing to  that  part  of  the  law  which 
is  peculiar  to  Eoman  citizens,  and 
consists  in  the  following  process : 
in  the  presence  of  not  fewer  than 
five  witnesses,  citizens  of  Eome 
above  the  age  of  puberty,  and  an- 
other person  of  the  same  condition, 
who  holds  a  bronze  balance  in  his 
hands  and  is  called  the  balance 
holder,  thealieneeholdingabronze 
ingot  in  his  hand,  pronounces  the 


J.§§  116-123.] 


DE  MANCIPIO 


75 


tenens  ita  dicit :  HVNC  EGO  HO- 

MINEM  EX  IVBE  QVIBITIVM  MEVM 
ESSE  AIO  ISQVE  MIHI  EMPTVS  E- 
STO  HOC  AEKE  AENEAQVE  LIBRA ; 

deinde  aere  percutit  libram  id- 
que  aes  dat  ei  a  quo  manciple 
accipit  quasi  pretii  loco. 

§  120.  Eo  modo  et  seruiles 
et  liberae  personae  mancipan- 
tur ;  animalia  quoque  quae 
mancipi  sunt,  quo  in  numero 
habentur  boues,  equi,  muH, 
asini ;  item  praedia  tarn  urbana 
quam  rustica  quae  et  ipsa  man- 
cipi sunt,  qualia  sunt  Italica, 
eodem  modo  solent  mancipari. 

§  121.  In  eo  solo  praediorum 
mancipatio  a  ceterorum  manci- 
patione  differt,  quod  personae 
seruiles  et  liberae,  item  anima- 
lia quae  mancipi  sunt,  nisi  in 
praesentia  sint,  mancipari  non 
possunt;  adeo  quidem,  ut  eum 
(quiy  mancipio  accipit,  adpre- 
hendere  id  ipsum  quod  ei  man- 
cipio datur  necesse  sit;  unde 
etiam  mancipatio  dicititr,  quia 
manu  res  capitur ;  praedia  uero 
absentia  solent  mancipari. 

§  122.  Ideo  autem  aes  et  li- 
bra adhibetur,  quia  olim  aereis 
tan  turn  nummis  utebantur,  et 
erant  asses,  dupundii,  semisses, 
quadrantes,  nee  ullus  aureus 
uel  argenteus  nummus  in  usu 
erat,  sicut  ex  lege  xil  tabula- 
rum  intellegere  possumus;  eo- 
ruinque  nummorum  uis  et  po- 
testas  non  |  in  numero  erat  sed 

in  pondere as|ses  librales 

erant,  et  dupundii 1 ;  unde 

etiam  dupundius  dictus  est 
quasi  duo  pondo,  quod  nomen 
adhuc  in  usu  retinetitr.  semis- 
ses quoquQ  et  quadrantes  pro 


following   words:    THIS   MAN   I 

CLAIM  AS  BELONGING  TO  ME  BY 
BIGHT  QUIRITARY  AND  BE  HE  (or, 
HE  IS)  PURCHASED  TO  ME  BY  THIS 
INGOT  AND  THIS  SCALE  OF  BRONZE. 

He  then  strikes  the  scale  with  the 
ingot,  which  he  delivers  to  the 
mancipator  as  by  way  of  purchase 
money. 

§  120.  By  this  formality  both 
slaves  and  free  persons  may  be 
mancipated,  and  also  such  animals 
as  are  mancipable,  namely,  oxen, 
horses,  mules,  and  asses :  im- 
movables also,  urban  and  rustic, 
if  mancipable,  such  as  Italic  lands 
and  houses,  are  aliened  by  the 
same  process. 

§  121.  The  only  point  wherein 
the  mancipation  of  land  and  build- 
ings differs  from  the  mancipation 
of  other  things  is  this,  that  manci- 
pable persons,  whether  slaves  or 
free,  and  animals  that  are  manci- 
pable, must  be  present  to  be  manci- 
pated :  it  being  necessary  that  the 
alienee  should  grasp  the  object  to 
be  mancipated  with  his  hand,  and 
from  this  manual  prehension  the 
name  of  mancipation  is  derived  ; 
whereas  land  and  buildings  may 
be  mancipated  at  a  distance  from 
them. 

§  122.  The  reason  of  using  a 
bronze  ingot  and  a  weighing  scale 
is  the  fact  that  bronze  was  the 
onlymetal  used  in  the  ancient  cur- 
rency, which  consisted  of  pieces 
called  the  as,  the  double  as,  the 
half  as,  the  quarter  as,  and  that 
gold  and  silver  were  not  used  as 
media  of  exchange,  as  appears  by 
the  law  of  the  Twelve  Tables : 
and  the  value  of  the  pieces  was 
not  measured  by  number  but  by 
weight.  Thus  the  as  was  a  pound 
of  bronze,  the  double  as  two 
pounds,  whence  its  name  (du- 
pondius),  which  still  survives  ;* 
while  the  half  as  and  quarter  as 


76 


DE  PERSONIS 


[i.§§  116-123. 


rata  scilicet  portione  ad  pon|- 

dus  examinati  erant. qui 

daba£  olim  \  pecuniara,  non  nu- 
merabat  earn,  sed  appendebat ; 
unde  serui  quibus  permittitur 
administratio  pe|cuniae  dispen- 

satores  appellati  sunt  et 1 

§  123.    coemptioj 

a   quidem   quae    coemlptionem 

fac seruilem   condici|onem 

a 1  mancipad  mancipataeue 

seruorum  loco  con|stituuntur, 
adeo  quidem,  ut  ab  eo  cuius  in 
mancipio  sunt  neque  heredi- 
tatem  neque  legata  aliter  capere 
possint,  quam  (si)  simul  eodera 
testamento  liberi  esse  iubean- 
tur  sicut  iuris  est  in  persona 
seruorum.  sed  differentiae  ratio 
manifesto  est,  cum  a  parentibus 
et  a  coemptionatoribus  isdem 
uerbis  mancipio  accipiantur 
quibus  serui;  quod  non  similiter 
jit  in  coemptione. 


were  masses  denned  by  weighing 
those  respective  fractions  of  a 
pound.  Accordingly,  money  pay- 
ments were  not  made  by  tale,  but 
by  weight,  whence  slaves  entrust- 
ed with  the  administration  of 
money  have  been  called  cashiers. 

§  123.  If  it  is  asked  in  what 
respect  coemptive  conveyance  dif- 
fers from  mancipation,  the  answer 
is  this,  that  coemption  does  not 
reduce  to  a  servile  condition, 
whereas  mancipation  reduces  to 
so  completely  a  servile  condition 
that  a  person  held  in  mancipation 
cannot  take  as  heir  or  legatee 
under  the  will  of  the  person  to 
whom  he  is  mancipated,  unless 
he  is  enfranchised  by  such  will, 
thus  labouring  under  the  same 
incapacity  as  a  slave  :  the  reason 
too  of  the  difference  is  plain, 
as  the  form  of  words  employed 
in  mancipation  by  a  parent  or  pre- 
vious acquirer  by  coemption  is 
identical  with  that  used  in  the 
mancipation  of  slaves,  but  it  is 
not  so  in  coemptive  conveyance. 


In  what  respects  did  domestic  bondage  (mancipium  or  mancipii 
causa)  differ  from  slavery  (servitus)  ?  Bondage  was  an  institute  of 
jus  civile,  slavery  an  institute  of  jus  gentium,  §  52.  Bondage 
was  the  result  of  mancipation  by  a  parent  or  coemptionator,  and 
only  a  Koman  citizen  was  capable  of  becoming  a  bondsman.  The 
proprietor  has  possession  of  the  slave,  the  lord  has  no  possession 
of  the  bondsman,  2  §  90.  The  bondsman  was  civis  Komanus, 
though  what  became  of  his  political  capacities  during  his  bondage 
is  uncertain ;  and  he  was  liber,  though  alieni  juris ;  he  was  free  in 
respect  of  the  rest  of  the  world,  he  was  only  a  bondsman  in  respect 
of  the  person  in  whose  mancipium  he  was.  Thus  the  status  of  man- 
cipium was  relative ;  a  man  could  only  be  in  mancipio  in  relation 
to  a  given  domestic  lord  :  whereas  the  status  of  slavery  was  absolute ; 
a  man  might  be  a  slave  without  an  owner  (servus  sine  domino) : 
for  instance,  a  person  condemned  for  a  capital  crime,  who  was 
called  the  slave  of  punishment  (servus  poenae,  Inst.  1,  12,  3),  or 
a  slave  abandoned  (derelictus)  by  his  owner.  Accordingly,  falling 
into  servitus  was  maxima  capitis  diminutio,  while  falling  into  man- 


i.  §§  116-123.]  DE  MANCIPIO  77 

cipii  causa  was  minima  capitis  diminutio,  §  162.  The  bondsman 
had  no  proprietary  rights  against  his  superior,  2  §  86,  but  he  had 
some  of  the  primordial  rights ;  for  instance,  he  could  sue  his 
superior  for  outrage,  §  141  ;  and  he  was  capable  of  civil  wedlock  and 
could  beget  Roman  citizens,  though  during  his  bondage  his  patria 
potestas  was  in  abeyance,  §  135.  Release  from  bondage,  as  from 
slavery,  was  by  manumission,  §  138,  and  the  manumitter  became  the 
patron  of  the  released  person,  §§  166,  195  a,  but  the  manumitted 
bondsman  became  ingenuus,  whereas  the  manumitted  slave  became 
libertinus.  Bondage  did  not  exist  in  the  time  of  Justinian. 

§  119.  The  libripens  must  not  be  dumb,  Ulpian,  20,  7:  probably 
because  he  had  to  utter  the  formula  preserved  by  Festus,  Raudusculo 
libram  ferito,  i.  e.  to  invite  the  emptor  to  strike  the  scale  with  the 
ingot,  in  order  to  show  by  the  ring  that  the  metal  was  genuine. 
Ihering,  §  46,  n.  708. 

§  120.  Praedia  Italica.  Under  the  first  emperors  the  body  of  the 
Roman  world  consisted  of  three  members,  the  imperial  city,  Rome, 
Italy,  and  the  provinces,  the  two  former  being  highly  privileged  in 
comparison  with  the  third.  After  the  Social  War,  91-88  B.C.,  all 
Italy  had  acquired  Roman  citizenship,  but  Italic  soil  was  not  a 
purely  local  appellation,  as  jus  Italicum  was  conceded  to  many 
provincial  cities.  Jus  Italicum,  or  Italian  privileges,  implied  (i)  a 
free  municipal  constitution  with  elective  magistrates  (generally 
called  duumviri  juri  dicundo)  possessed  of  independent  jurisdiction  ; 
and,  what  was  still  more  important,  (2)  immunity  from  direct 
taxation,  whether  in  the  form  of  capitation  tax  (tributum  capitis), 
imposed  on  all  who  were  not  holders  of  land  (tributarii),  or  in  the 
form  of  land  tax  (tributum  agri),  imposed  on  holders  of  land  (pos- 
sessores),  and  paid  in  provinces  of  the  people  to  the  aerarium  under 
the  name  of  stipendium,  in  provinces  of  the  emperor  to  the  fiscus 
under  the  name  of  tributum,  2  §  21.  Italic  soil  was  (3)  subject  to 
Quiritary  ownership  (dominium  ex  jure  Quiritium)  and  acquirable 
and  transferable  by  usucapion  and  mancipation.  Under  the  later 
emperors,  as  early  as  the  time  of  Diocletian,  the  Roman  world  was 
equalized,  not  by  the  elevation  of  the  depressed  members,  but  by 
depression  of  those  formerly  favoured:  Italy  was  shorn  of  her 
privileges,  and  all  the  empire  became  provincial. 

§  122.  Chemical  analysis  shows  that  the  aes  of  which  Roman 
coins  consisted  was  bronze,  a  mixture  of  copper  (cuprum),  tin,  and 
lead.  [English  bronze  is  an  alloy  composed  of  ninety-five  parts  of 
copper,  four  parts  of  tin,  and  one  part  of  zinc.]  Brass,  a  mixture 
of  copper  and  calamine  (cadmeia)  or  zinc,  was  called  orichalcum. 
Silver  currency  was  first  introduced  B.C.  269.  The  primitive  system 
of  currency  was  everywhere  currency  by  weight,  and  every  system 


78 


DE  PERSONIS 


[i.  §§  124-131. 


of  coinage  was  originally  identical  with  a  system  of  weights,  the 
unit  of  value  being  the  unit  of  weight  of  some  selected  metal 
(Jevons,  Money,  ch.  9).  The  pieces  of  which  a  currency  by  weight 
consists  are  not  properly  coins,  for  coins  are  ingots  of  which  the 
weight  and  fineness  are  certified  by  the  integrity  of  the  designs 
impressed  upon  the  surfaces  of  the  metal  (ibid.  ch.  7).  Money 
is  legal  tender  (Mill,  Pol.  Econ.  12,  7).  Legal  tender  is  that 
which  must  be  tendered  by  the  debtor  and  accepted  by  the  creditor 
in  discharge  of  a  debt ;  e.  g.  in  England  silver  coin  is  a  legal 
tender  only  to  the  amount  of  forty  shillings  in  any  one  payment, 
bronze  coins  are  a  legal  tender  only  to  the  aggregate  amount  of 
one  shilling.  Bank  of  England  notes  are  a  legal  tender  everywhere 
in  England  but  at  the  bank,  i.  e.  are  there  convertible  into  gold. 

§  123.  As  coemptio  was  a  form  of  mancipatio,  how  does  it  happen 
that  manus,  the  result  of  coemptio,  differs  from  mancipium,  the 
result  of  mancipatio  ?  Because,  Gaius  answers,  the  formula  of 
words  used  in  the  mancipatio  that  entered  into  coemptio  was  speci- 
fically different  from  the  formula  employed  on  other  occasions  of 
mancipation. 


QVIBUS  MODIS  IVS   POTESTATIS   SOLVATVR. 


§  124.  Videamus  nunc  quo- 
modo  hi  qui  alieno  iuri  subiecti 
sunt  eo  iure  liberentur. 

Inst.  l,12pr. 

§  125.  Ac  prius  de  his  dispi- 
ciarnus  qui  in  potestate  sunt. 

§  126.  Et  quidem  serui  quem- 
admodum  potestate  liberen- 
tur, ex  his  inteUegere  possuinus 
quae  de  seruis  manumittendis 
superius  exposuimus. 

Inst.  1.  c. 

§  127.  Hi  uero  qui  in  pote- 
state £>arentis  sunt,  mortuo  eo 
sui  iurisfiunt.  sed  hoc  disiin- 
ctionem  recipit ;  nam  mortuo 
patre  sane  omni  modo  filii  filiae- 
ue  sui  iuris  efficiuntur ;  mor- 
tuo uero  auo  non  omni  modo 
nepotes  neptesue  sui  iuris  fiunt, 
sed  ita,  si  post  mortem  aui  in 
patris  sui  potestatem  recasuri 
non  sunt.  itoque  si  moriente 
auo  pater  eorum  et  uiuat  et  in 


§  124.  Let  us  now  examine  the 
modes  whereby  persons  depen- 
dent on  a  superior  are  freed  from 
their  dependence. 

§  125.  And,  first,  let  us  con- 
sider persons  subject  to  power. 

§  126.  How  slaves  are  liber- 
ated may  be  intelligible  from 
what  we  have  explained  above 
about  servile  manumission. 


§127.  Children  under  paternal 
power  become  independent  at  the 
parent's  death,  subject,  however, 
to  this  reservation  :  the  death  of 
a  father  always  releases  his  sons 
and  daughters  from  dependence  : 
the  death  of  a  grandfather  only 
releases  his  grandchildren  from 
dependence,  provided  that  it  does 
not  subject  them  to  the  power  of 
their  father :  for  if  at  the  death 
of  the  grandfather  the  father  is 
alive  and  in  his  power,  the  grand- 


I.  §§  124^131.]     Q.  M.  IVS  POTESTATIS  SOLVATVR        79 


potestate  patris  (sui)  fuerit, 
tune  post  obitum  aui  in  patris 
sui  potestate  fiunt;  si  uero  is, 
quo  tempore  auus  moritur,  aut 
iam  mortuus  est  aut  exiit  de 
potestate  (patris,  tune  hi,  quia 
in  potestatem)  eius  cadere  non 
possunt,  sui  iuris  fiunt. 

Inst.  1.  c. 

§  128.  Cum  autem  is  cui 
ob  aliquod  maleficium  ex  lege 
Cornelia  aqua  et  igni  interdici- 
tur  ciuitatem  Romanam  amit- 
tat,  sequitur  ut,  quia  eo  modo 
ex  numero  ciuium  Romanorum 
tollitur,  proinde  ac  mortuo  eo 
desinant  liberi  in  potestate  eius 
esse  ;  nee  enim  ratio  patitur,  ut 
peregrinae  condicionis  homo 
ciuem  Romanum  in  potestate 
habeat.  pari  ratione  et  si  ei 
qui  in  potestate  parentis  sit 
aqua  et  igni  interdictum  fuerit, 
desinit  in  potestate  parentis  es- 
se, quia  aeque  ratio  non  patitur, 
ut  peregrinae  condicionis  homo 
in  potestate  sit  ciuis  Romani 
parentis.  Inst.  1, 12;  1. 

§  129.  Quodsi  ab  hostibus 
captus  fuerit  parens,  quamuis 
seruus  hostium  fiat,  tamen  pen- 
det  ius  liberorum  propter  ius 
postliminii,  quo  hi  qui  ab  hosti- 
bus capti  sunt,  si  reuersi  fue- 
rint,  omnm  pristina  iura  reci- 
piunt ;  itaque  reuersus  habebit 
liberos  in  potestate.  si  .uero 
illic  mortuus  sit,  erunt  quidem 
liberi  sui  iuris  ;  sed  utrum  ex 
hoc  tempore  quo  mortuus  est 
apud  hostes  parens,  an  ex  illo 
quo  ab  hostibus  captus  est,  du- 
bitari  potest.  ipse  quoque 
films  neposue  si  ab  hostibus 
captus  fuerit,  similiter  dicemus 
propter  ius  postliminii  potesta- 
tem  quoque  parentis  in  suspense 
esse.  Inst.  1, 12, 5. 


children,  after  the  grandfather's 
death,  are  in  the  power  of  the 
father ;  but  if  at  the  time  of  the 
grandfather's  death  the  father  is 
dead  or  not  subject  to  the  grand- 
father, the  grandchildren  will  not 
fall  under  his  power,  but  become 
independent. 

§  128.  As  interdiction  from  fire 
and  water  for  an  offence  against 
the  Cornelian  law  involves  loss  of 
citizenship,  such  removal  of  a  man 
from  the  list  of  Roman  citizens 
operates,  like  his  death,  to  liberate 
his  children  from  his  power,  for  it 
is  inconsistent  with  civil  law  that 
an  alien  should  exercise  parental 
power  over  a  citizen  of  Rome  : 
conversely,  the  interdiction  from 
fire  and  water  of  a  person  subject 
to  parental  power  terminates  the 
power  of  the  parent,  because  it  is 
a  similar  inconsistency  that  a 
person  of  alien  status  should  be 
subject  to  the  parental  power  of 
a  Roman  citizen. 


§  1 29.  Though  the  hostile  cap- 
ture of  the  parent  makes  him  a 
slave  of  the  enemy,  the  status  of 
his  children  is  suspended  by  the 
jus  postliminii,  whereby  on  escape 
from  captivity  a  man  recovers  all 
former  rights  :  accordingly,  if  the 
father  returns  he  will  have  his 
children  in  his  power  ;  if  he  dies 
in  captivity  his  children  will  be 
independent,  but  whether  their 
independence  dates  from  the  death 
of  the  parent  or  from  his  capture 
by  the  enemy  may  be  disputed. 
Conversely,  if  a  son  or  grandson 
is  captured  by  the  enemy,  the 
power  of  his  ascendent  is  also 
provisionally  suspended  by  the 
jus  postliminii. 


80                                    DE  PERSONIS  [i.  §§  132-136. 

§  130.  Praeterea  exeunt  li-  §130.  Further,  a  son  is  liberated 

beri  uirilis  sexus  de  parentis  from  parental  power  by  his  in- 

potestate  si  Gamines  Diales  in-  auguration  as  flamen  of  Jove,  a 

augurentur,  et  feminini  sexus  daughter  by  her  selection  for  the 

si  uirgines  Vestales  capiantur.  office  of  Vestal  virgin- 

§  131.  Olim  quoque,  quo  §  131.  Formerly,  too,  when 

tempore  populus  Romanus  in  Rome  used  to  send  colonies  into 

Latinas  regiones  colonias  de-  the  Latin  territory,  a  son  who  by 

ducebat,  qui  iussu  parentis  in  his  parents'  order  enrolled  his 

eolomam  Latinam  nomen  dedis-  name  in  a  colony  ceased  to  be 

sent,  desinebant  in  potestate  under  parental  power,  since  he 

parentis  esse,  quia  efficerentur  was  made  a  «tizen  of  another 

alterius  ciuitatis  dues.  state. 


§  128.  Relegation  was  a  milder  form  of  punishment  than  de- 
portation, and  involved  no  loss  of  civitas  nor  of  domestic  rights, 
Inst.  1,  12,  2. 

§  129.  Postliminium  is  the  recovery  of  rights  by  a  person  re- 
turned from  captivity,  or  the  recovery  of  rights  over  a  person  or 
thing  recovered  from  hostile  possession.  The  word  postliminium 
seems  to  be  derived  from  pot,  the  root  of  potestas  or  possessio, 
and  limen  or  stlimen  =  ligamen,  and  therefore  would  denote  the 
bridging  over  of  the  interval  of  captivity  by  a  fiction  of  continued 
capacity  or  possession,  ot  a  doorway  is  bridged  over  by  a  lintel 
(limen). 

§  130.  In  imitation  of  the  ancient  law  Justinian  enacted  that 
certain  dignities  should  release  from  patria  potestas ;  for  instance, 
patriciatus  and  the  episcopate,  the  latter  because  it  made  a  man 
spiritual  father  of  all  mankind,  Novella,  81. 

§  131.  The  Latini  or  members  of  coloniae  Latinae  were  an  inter- 
mediate class  between  cives  and  peregrini.  They  differed  from 
peregrini  in  that  they  had  commercium,  i.e.  capacity  of  Quiritary 
ownership  with  its  incidents,  and  they  differed  from  cives  in  not 
having  connubium,  and  consequently  being  incapable  of  patria 
potestas,  Cic.  Pro  Caecina,  35.  Cf.  §  22,  comm.  A  Roman  citizen 
could  only  become  a  Latin  with  his  own  consent.  Qui  cives 
Romani  in  colonias  Latinas  proficiscebantur,  fieri  non  poterant 
Latini  ni  erant  auctores  facti  nomenque  dederant,  Cic.  De  Domo,  30. 
'  Roman  citizens  who  went  to  Latin  colonies  did  not  lose  their 
citizenship  without  voluntary  enrolment  among  the  colonists.'  See 
also  Cic.  Pro  Balbo,  11. 

§  132.  Praeterea  emancipa-  §  132.  Emancipation  also  libe- 
tione  desinunt  liberi  in  pote-  rates  children  from  the  power  of 
state  parentum  esse.  sed  filius  the  parent,  a  son  being  liberated 


I.  §§  132-136.]  Q.  M.  IVS  POTESTATIS  SOLVATVR 


81 


quidem  tribus  mancipationibus, 
ceteri  uero  liberi  siue  masculini 
sexus  siue  feminini  una  manci- 
patione  exeunt  de  parentum 
potestate ;  lex  enim  xn  tabu- 
larum  tantum  in  persona  filii 
de  tribus  mancipationibus  lo- 
quitur his  uerbis  si  PATER  FI- 

LIVM  (T.EB)  VENVM  DVIT,  A  PA- 

TBE  FILTVS  LIBER  ESTO.  eaque 
res  ita  agitur :  mancipat  pater 
filium  alicui ;  is  eum  uindicta 
manumittit ;  eo  facto  reuertitur 
in  potestatem  patris ;  is  eum 
iterum  mancipat  uel  eidem  uel 
alii  (sed  in  usu  est  eidem  man- 
cipari)  isque  eum  postea  sirni- 
liter  uindicta  manumittit ;  eo 
facto  rursus  in  potestatem  pa- 
tris reuertitur ;  tertio  pater  eum 
mancipat  uel  eidem  uel  alii  (sed 
hoc  in  usu  est,  ut  eidem  man- 
cipetur),  eaque  mancipatione 
desinit  in  potest&te  patris  esse, 
eftamsi  nondum  manumissus  sit 
sed  adhuc  in  causa  mancipii. 
sj — | 1 missi- 


(3  uersus  in  G  legi  nequeunt.) 
Inst.  1, 12,  6  ;  Epit.  1, 6, 3. 


§  132  a. 


-pa- 


trono  in  bonis 
(3  ueraU8  in  C  legi  nequeunt.) 
— feminae  una  \  manci- 
patione exeunt  de  patris  pote- 

state 1 manumissae 

fuerint  s 1 ( 1 

Inst.  1.  c. 


by  three  mancipations,  other 
issue,  male  or  female,  by  a  single 
mancipation  ;  for  the  law  of  the 
Twelve  Tables  only  mentions 
three  mancipations  in  the  case 
of  the  son,  which  it  does  in  the 
following  terms :  IF  A  FATHER 

SELL  A  SON  THREE  TIMES,  THE  SON 
SHALL  BE  FREE  FROM  THE  FATHER. 

The  ceremony  is  as  follows  :  the 
father  mancipates  his  son  to  some 
one;  the  alienee  manumits  him  by 
fictitious  vindication,  whereupon 
he  reverts  into  the  power  of  his 
father ;  the  father  again  manci- 
pates him  to  the  same  or  a  diffe- 
rent alienee,  usually  to  the  same, 
who  again  manumits  him  by 
fictitious  vindication,  whereupon 
he  reverts  a  second  time  into  the 
power  of  his  father  ;  the  father 
then  mancipates  him  a  third  time 
to  the  same  or  a  different  alienee, 
usually  to  the  same,  and  by  this 
third  mancipation  the  son  ceases 
to  be  in  the  power  of  the  father 
even  before  manumission,  while 
still  in  the  status  of  a  person 
held  in  mancipation.  [The  alienee 
or  fiduciary  father  should  then 
remancipate  him  to  the  natural 
father,  in  order  that  thereupon 
the  natural  father  by  manumit- 
ting him  may  acquire  the  rights 
of  patron  instead  of  the  fiduciary 
father.] 

§  1 32  a.  A  manumitter  of  a  free 
person  from  the  state  of  man- 
cipium  has  the  same  rights  to  the 
succession  of  his  property  as  a 
patron  has  in  respect  of  the  pro- 
perty of  his  freedman.  Women 
and  male  grandsons  by  a  son 
pass  out  of  the  power  of  their 
father  or  grandfather  after  one 
mancipation  ;  but  unless  they  are 
remancipated  by  their  fiduciary 
father,  and  manumitted  by  their 
natural  father,  the  latter  has  no 
rights  of  succession  to  their  pro- 
perty. 


G 


82 


DE  PERSONIS 


[i.  §§  132-136. 


§  133. Admonendi  autem 

sumus  liberum  esse  arbitrium 
et  qui  filium  et  ex  eo  nepotem 
in  potestate  habebit,  filium 
quidem  de  potestate  dimittere, 
nepotem  uero  in  pot&state  re- 
tinere ;  uel  ex  diuerso  filium 
quidem  in  potestate  retinere, 
nepotem  uero  manumittere, 
uel  omnes  sui  iuris  efficere. 
eadem  et  de  pronepote  dicta 

esse  intellegemus. 

Inst.  1,  12,  7 ;  Gaius  in  Dig. 
1,7,28. 


§134. 


-et  duae 


intercedentes  manumissiones 
proinde  fiunt,  ac  fieri  solent 
cum  ita  eum  pater  de  potestate 
dimittit,  ut  sui  iuris  efficicttur. 
deinde  aut  patri  remancipatur, 
et  ab  eo  is  qui  adoptat  uindicat 
apud  praetorem  filium  suum 
esse,  et  illo  contra  non  uin^- 
cante  (a)  praetore  uindicanti 
filius  addicitur ;  aut  non  reman- 
cipatiir  patri,  sed  ab  eo  uindi- 
cat is  qui  adop£a£,  apud  quern 
in  teitia  mancipatione  est ;  sed 
sane  commodius  est  patri  re- 
mancipari:  in  ceteris  uero 
liberorum  personis  sen  mascu- 
lini  seu  feminini  sexus  una  sci- 
licet mancipatio  sufficit,  et  aut 
remancipan-tur  parenti  aut  non 
remancipantur.  Eadem  et  in 
prouinciis  apud  praesidem  pro- 
uinciae  solent  fieri. 

Inst.  1,12,8. 


§  135.  Qui  ex  filio  semel  ite- 
rumue  mancipato  conceptus 
est,  licet  post  tertiam  mancipa- 
tionem  patris  sui  nascatur, 
tamen  in  aui  potestate  est,  et 
ideo  ab  eo  et  ernancipari  et  in 
adoptionem  dari  potest.  At  is 


§  133.  But  it  should  be  noticed 
that  a  grandfather  who  has 
both  a  son,  and  by  his  son  a 
grandson,  in  his  power,  may  either 
release  his  son  from  his  power 
and  retain  the  grandson,  or  retain 
the  son  and  manumit  the  grand- 
son, or  emancipate  both  son  and 
grandson ;  and  a  great  grand- 
father has  a  similar  latitude  of 
choice. 


§  134.  A  father  is  also  divested 
of  power  over  his  children  by 
giving  them  in  adoption.  To  give 
a  son  in  adoption,  the  first  stage 
is  three  mancipations  and  two 
intervening  manumissions,  as  in 
emancipation ;  after  this  the  son  is 
either  remancipated  to  the  father, 
and  by  the  adopter  claimed  as  son 
from  him  by  vindication  before 
the  praetor,  and  in  default  of 
counterclaim  by  the  natural  father 
is  awarded  by  the  praetor  to  the 
adoptive  father  as  his  son;  or 
without  remancipation  to  the 
natural  father  is  directly  claimed 
by  the  adoptive  father  by  vin- 
dication from  the  alienee  of  the 
third  mancipation  (fiduciary  fa- 
ther) ;  but  it  is  more  convenient 
to  interpose  a  remancipation  to 
the  natural  father.  In  the  case 
of  other  issue,  male  or  female,  a 
single  mancipation  suffices,  with 
or  without  remancipation  to  the 
natural  father.  In  the  provinces 
a  similar  ceremony  can  be  per- 
formed before  the  president  of 
the  province. 

§  135.  A  grandson  begotten 
after  the  first  or  second  mancipa- 
tion of  the  son,  though  born  after 
the  third  mancipation,  is  subject 
to  the  power  of  the  grandfather, 
and  may  by  him  be  given  in 
adoption  or  emancipated:  a  grand- 


i.  §§  132-136.]  Q.  M.  IVS  POTESTATIS  SOLVATVR 


83 


qui  ex  eo  filio  conceptus  est  qui 
in  tertia  mancipatione  est  non 
nascitur  in  aui  potestate.  sed 
eum  Labeo  quidem  existimat  m 
eiusdem  mancipio  esse  cuius  et 
pater  sit ;  utimur  autem  hoc 
iure,  ut  quamdiu  pater  eius  in 
mancipio  sit,  pendeat  ius  eius ; 
et  siquidem  pater  eius  ex  man- 
cipatione manumissus  erit,  ca- 
dat  in  eius  potestatem  ;  si  uero 
is  dum  in  mancipio  sit  deces- 
serit,  sui  iuris  fiat. 

§  135  a.      |  Eadem    scilicet 

1 nam  ]  ut  supra 

diximus,  quod  in  filio  faciunt 
tres  manci|pationes,  hoc  facit 
una  mancipatio  in  nepote. 


§136.-| 1 1 

Maximi  et  |  Tuberonis  cautum 
est,  ut  haec  quod  ad  sacra  tan- 
turn  uideatur  in  manu  esse, 
quod  uero  ad  ceteras  causas 
proinde  habeatur,  atque  si  in 

manum  non  conuenisset.| 1 

potestate  parentis  libe- 

rantur  ;  nee  in  terest,  an  in  uiri 
sui  manu  smt  an  extranei, 
quamuis  hae  solae  loco  filia- 
rum  habeawtur  quae  in  uiri 
malnu  sunt. 


son  begotten  after  the  third  man- 
cipation is  not  born  in  the  power 
of  the  grandfather,  but,  according 
to  Labeo,  is  born  in  mancipation 
to  the  person  to  whom  his  father 
is  rnaneipated.  The  rule,  how- 
ever, which  has  obtained  accept- 
ance with  us  is,  that  so  long  as  the 
father  is  in  mancipation  the  status 
of  the  child  is  in  suspension,  and  if 
the  father  is  manumitted  the  child 
falls  under  his  power ;  if  the 
father  dies  in  mancipation  the 
child  becomes  independent. 

§  135  a.  The  rule  is  the  same 
in  the  case  of  a  child  begotten 
of  a  grandson  who  has  been 
once  mancipated,  but  not  yet 
manumitted  ;  for,  as  before  men- 
tioned, the  result  of  three  man- 
cipations of  the  son  is  obtained 
by  a  single  mancipation  of  the 
grandson. 

§  136.  A  wife  subjected  to  the 
hand  of  a  husband  by  confarrea- 
tion  is  not  thereby  freed  from 
the  power  of  her  father  ;  and  this 
is  declared  by  the  senatusconsult 
of  the  consuls  of  Maximus  and 
Tubero  respecting  the  priestess  of 
Jove,  according  to  which  she  is 
only  in  the  marital  hand  as  far  as 
the  sacra  are  concerned,  the  status 
of  the  wife  being  unaffected  in 
other  respects  by  such  subjection. 
Subjection  to  hand  by  coemption 
liberates  from  the  power  of  the 
parent,  and  it  is  immaterial 
whether  it  is  a  coemption  sub- 
jecting the  woman  to  the  hand 
of  a  husband  or  to  the  hand  of 
a  stranger,  although  the  status 
of  quasi  daughter  only  belongs 
to  a  woman  in  the  hand  of  a 
husband. 


§  132.  The  epitome  of  Gaius,  1,  6,  3,  which  throws  light  on  this 
passage,  mentions  as  present  at  an  emancipation,  besides  the  five 
witnesses  and  libripens,  a  seventh  person  called  antestatus,  who 
is  also  mentioned  in  the  bronze  tablet  referred  to  in  the  remarks 

a  a 


84  DE  PERSONIS  [i.  §§  132-136. 

on  pignus  and  fiducia.  Book  3,  §§  90,  91,  comm.  His  duty  may 
have  been  to  ask  the  witnesses  whether  they  were  bearing  witness 
to  the  transaction  (antestari).  Cf.  Koby,  Private  Law,  pp.  180,  n.  2, 
423,  n.  3. 

The  vindicta  or  wand  used  in  manumission,  as  already  stated,  was 
the  rod  or  verge  symbolizing  a  lance  carried  by  the  parties  in  a  real 
action,  4  §  1 3.  The  status  of  freedom  (libertas)  whether  as  opposed  to 
slavery  or  to  bondage  (mancipii  causa)  was  a  real  right  (jus  in  rem), 
and  therefore  a  subject  to  be  contested  in  a  vindicatio.  Manumis- 
sion by  vindicta  was  a  collusive  vindicatio,  in  o.'her  words,  an  in 
jure  cessio.  Cf.  Roby,  1,  p.  26,  n.  1. 

The  epitome  of  Gaius  (1.  c.)  calls  the  person,  to  whom  the  son  was 
mancipated  by  pater  naturalis,  pater  fiduciarius,  which  implies  that 
the  mancipation  was  accompanied  by  a  fiducia  or  declaration  of 
trust.  The  trust  would  be  that  the  pater  fiduciarius  should  make 
default  or  confess  in  the  subsequent  in  jure  cessio. 

§  134.  Assuming  that  in  adoption,  as  in  emancipation,  the  person 
to  whom  the  son  was  mancipated  was  called  pater  fiduciarius,  we 
find  in  adoption  three  fathers  in  the  field,  pater  naturalis,  pater 
fiduciarius,  and  pater  adoptivus.  Remancipation  to  the  natural 
father  added  a  stage  to  the  process ;  but  is  described  as  more  con- 
venient, because  it  reduced  the  number  of  actors  from  three  to  two  ; 
for  it  enabled  the  part  of  pater  fiduciarius  to  be  played  .by  pater 
adoptivus.  It  appears  from  §  135  (cf.  however  §  141)  that  though 
the  status  of  bondage  was  purely  formal,  yet  perhaps  to  give  an 
air  of  reality  to  the  drama,  the  status  was  sometimes  made  to 
have  a  certain  duration.  So  when  a  prince  is  advanced  from  the 
rank  of  private  to  that  of  general,  a  certain  interval  is  interposed 
between  the  intermediate  promotions  for  the  sake  of  decorum, 
though,  the  whole  proceeding  being  unreal,  all  the  steps,  if  the 
authorities  were  so  disposed,  might  be  compressed  into  a  single  day. 
Ihering,  §  46. 

The  status  of  paterfamilias  or  of  filiusfamilias  being,  like  other 
kinds  of  status,  a  real  right,  the  claim  of  a  person  as  filiusfamilias 
was  a  matter  to  be  contested  in  a  real  action  or  vindicatio  brought 
against  the  person  in  whose  possession  he  was.  This  would  seem 
the  more  obvious  in  primitive  times,  when  probably  no  distinction 
was  made  between  patria  potestas  and  dominica  potestas,  i.e.  be- 
tween paternal  power  and  absolute  proprietorship.  Such  vindicatio 
was  sometimes  a  matter  of  contentious  (not  voluntary)  jurisdiction, 
i.e.  of  genuine  litigation.  Cf.  Dig.  6.  1,  1,  2,  where  we  are  told  that 
the  ground  of  making  a  claim  of  this  kind  must  be  particularly 
specified  (adfecta  causa)  in  the  vindication.  The  ordinary  mode 
of  judicially  determining  the  status  of  a  child  in  case  of  dispute  was 


I.  §§  137-141.]  Q.  M.  MANY  ET  MANCIPIO  LIBEEENTVR    85 

by  a  praejudicium,  4  §  44,  comm.  The  father  could  compel  any  one, 
who  had  possession  of  his  child,  to  produce  him  by  the  interdictum 
de  liberis  exhibendis  or  de  liberis  ducendis  4  §§  138-170,  comm. 
In  case  of  dispute  between  paterfamilias  and  filiusfamilias  inter 
se,  recourse  might  be  had  to  the  extraordinaria  cognitio  of  the 
magistrate.  Sohm's  Inst.  §  101. 

Justinian  simplified  the  formalities  of  emancipation  and  adoption. 
He  allowed  the  former  to  be  accomplished  by  a  simple  declaration 
of  the  father  before  a  competent  judge  or  magistrate  (Emancipatio 
Justinianea) ;  and  the  latter  after  appearance  of  all  the  parties  before 
such  a  judge,  insinuatio,  i.e.  a  memorandum  of  the  transaction  in  the 
public  records  (actis  intervenientibus)  being  in  both  cases  required. 
Emancipation  by  imperial  rescript  had  been  previously  instituted  by 
the  Emperor  Anastasius  (Emancipatio  Anastasiana).  Imperial  rescript 
was  required  for  effecting  an  arrogation. 

In  English  law  children  are  enfranchised,  and  the  limited  power 
of  the  father  over  their  person  and  property  is  terminated  by 
two  events  which  did  not  operate  emancipation  in  Eoman  law, 
marriage  and  arrival  at  years  of  discretion,  that  is,  attainment  of 
majority  by  the  completion  of  twenty-one  years  of  age.  At 
these  points,  under  English  law,  the  empire  of  the  father  or  other 
guardian  gives  place  to  the  empire  of  reason ;  whereas  neither 
marriage  nor  majority  released  the  Eoman  son  or  daughter  from 
potestas. 

§  136.  Cf.  §§  108-115  &,  comm.  Q.  Aelius  Tubero  and  Paulus 
Fabius  Maximus  were  consuls  B.C.  11,  the  year  in  which  the  office 
of  flamen  dialis  was  re-established.  This  cannot  therefore  be  the 
law  A.D.  23  referred  to  by  Tacitus,  Ann.  4,  16  (see  note  to  Muirhead's 
Gaius). 

§  137. 1 1 j  §  137.  A  woman  subjected  to 

—  mancipatione  desinunt  in  hand  by  coemption  is,  like  a 

manu  esse,  et  si  ex  ea  mancipa-  daughter,  released  therefrom  by 

tione  manumissae  fuerint  sui  one  mancipation,  and  on  sub- 

iuris  ef|fici^7iiur.  sequent  manumission  becomes 

independent. 

xio-y^ -.,.                   i  §137  a.  Between  a  woman  who 

V  *wf  w«      '      — .      ---(j  UcttJ  f         -      '  ,   .      .  .  •  . ., 

cogere  coem^onatorem  ha* entered  1!lto  a  coemPtlon  ™& 

potest,  ut    se   remancipet,   cui  a  stranger  and  a  woman  who  has 

4  ,,.,  ...,^  .  entered  into  a  coemption  with  a 

lpsa    uel|it nihilo    magis  husband  there  is  this  difference, 

potest    cogere    quam  et    fi ha  that  the  former  has  the  power  of 

patrem.    sed  film  quidem  nullo  compelling  the  coemptionator  to 

mpdo    patrem     potest    cogere,  remancipate  her  to  any  one  she 

etiamsi  adoptiua  sit ;  haec  au-  pleases,  whereas  the  latter  cannot 

tern    {uirum}   repudio    misso  compel  him  to  do  this  any  more 

proinde    conpellere  potest,  at-  than  a  daughter  can  her  father. 


86 


DE  PERSONIS 


[i.  §§  137-141. 


que    si    ei     numquam    nupta 
fuisset. 


§  138.  li  qui  in  causa  man- 
cipii  sunt,  quia  seruorum  loco 
habentur,  uindicta  censu  testa- 
mento  manumissi  sui  iuris 
fiuut. 

§  1 39.  Nee  tamen  in  hoc  casu 
lex  Aelia  Sentia  locum  habet. 
itaque  nib.il  requirimus,  cuius 
aetatis  sit  is  qui  manumittit  et 
qui  manumittitur  ;  ac  ne  illud 
quidem,  an  patronum  credito- 
remue  manumissor  babeat.  ac 
ne  numerus  quidem  lege  Fufia 
Caninia  finitus  in  his  personis 
locum  babet. 

§  140.  Quin  etiam  inuito 
quoque  eo  cuius  in  mancipio 
sunt  censu  libertatem  consequi 
possunt,  excepto  eo  quern  pater 
ea  lege  mancipio  dedit  ut  sibi 
remancip&tur ;  nam  quodam- 
modo  tune  pater  potestatem 
propriam  reseruare  sibi  uidetur 
eo  ipso,  quod  mancipio  recipit. 
1  ac  ne  is  quidem  dicitur  inuito 
eo  cuius  in  mancipio  est  censu 
libertatem  consequi,  quern  pater 
ex  noxali  causa  [mancipio  de- 
dit], ueluti  quod  furti  eius  no- 
mine damnatus  est,  [et  eum] 
mancipio  actori  dedit ;  nam 
bunc  actor  pro  pecunia  habet. 


A  daughter,  however,  has  no 
means  of  compelling  her  father 
to  emancipate  her  even  if  she  is 
only  such  by  adoption,  whereas 
a  wife  by  sending  a  message  of 
divorce  can  compel  her  husband 
to  release  her  from  his  hand,  just 
as  if  they  had  never  been  married. 

§  138.  As  persons  in  mancipa- 
tion are  in  the  position  of  slaves, 
manumission  byfictitious  vindica- 
tion, by  entry  on  the  censor's 
register,  by  testamentary  disposi- 
tion, are  the  modes  by  which 
they  acquire  independence. 

§  139.  But  to  them  the  lex 
Aelia,  Sentia  has  no  application : 
no  age  of  the  person  manumitting 
or  the  person  manumitted  is 
required ;  the  manumission  is 
subject  to  no  proviso  against 
fraud  on  the  rights  of  patron  or 
creditors,  nor  even  to  the  nu- 
merical limitation  of  the  lex 
Fufia  Caninia. 

§  140.  But  even  though  the 
assent  of  the  holder  in  mancipa- 
tion is  withheld,  freedom  may 
be  acquired  by  entry  on  the 
register  of  the  censor,  except 
when  a  son  has  been  mancipated 
by  a  father  with  a  condition  of 
remancipation,  then  the  father 
is  deemed  to  have  reserved  in  a 
way  his  own  power  in  consequence 
of  the  condition  that  he  is  to 
have  him  back  in  mancipation  ; 
nor  can  liberty  be  acquired  with- 
out the  assent  of  the  holder  in 
mancipation  by  entry  on  the 
censor's  register  when  a  delin- 
quent son  has  been  surrendered 
by  his  father  in  consequence  of 
a  noxal  suit ;  when,  for  instance, 
the  father  has  been  condemned  in 
an  action  for  a  theft  committed  by 
the  son,  and  has  by  mancipation 
surrendered  his  son  to  the  plaintiff, 
for  in  this  case  the  plaintiff  holds 
him  in  lieu  of  pecuniary  damages. 


I.  §§  142-154.]  DE  TVTELIS  87 

&  141.  In  summa  admonendi  §  141.   Finally,    it    is    to    be 

sumus   aduersus    eos    quos   in  observed  that  contumelious  treat- 

mancipio  habemus  nihil  nobis  ment  of  a  person  held  m  mancipa- 

contu^eliosefacerelieere:  alio-  fc 


qum  mmriarumtenebimu^  ac  ™*<  n  ^ 

ne  dm  quidem  in  eo  mre  deti-  igtent  but  m*rel    formai  and 

nentur  homines,  sed  plerumque  momentary    except  when  it  is 

hoc   fit  dicis   gratia   uno   mo-  the  consequence  Of  surrender  in 

mento,  nisi  scilicet  ex  noxali  lieu  of  Damages  in  an  action  of 

causa  mancipentur.  trespass. 

§  137.  Dissolution  of  marriage  (divortium)  could  be  effected  either 
by  the  consent  of  both  parties  or  by  the  act  of  one.  The  message  of 
repudiation  (repudium)  contained  the  formula,  Tuas  res  tibi  habeto, 
'  Take  away  thy  property.'  Mimam  illam  suam  suas  res  sibi  habere 
jussit  claves  ademit,  exegit,  Cic.  Phil.  2,  28.  '  The  actress  was  ordered 
to  pack,  deprived  of  the  keys,  turned  out  of  the  house,'  The  lex  Julia 
de  adulteriis  prescribed  a  form  for  repudium,  and  required  the  message 
to  be  delivered  by  a  freedman  of  the  family,  in  the  presence  of 
seven  witnesses  above  the  age  of  puberty  and  citizens  of  Rome. 
The  party  who  made  a  causeless  repudium,  or  whose  misconduct 
justified  a  repudium,  was  punished  by  pecuniary  losses  in  respect  of 
dos  and  propternuptial  donations.  After  much  veering  legislation 
under  the  Christian  Emperors,  Justinian  enacted  that  a  man  or  woman 
who  divorced  without  a  cause  should  retire  to  a  cloister  and  forfeit 
all  his  or  her  estate,  one  moiety  to  his  or  her  successors,  and  the  other 
moiety  to  the  cloister.  Nov.  1  34,  1  1.  But  it  was  not  till  later  times 
that  the  Church  succeeded  in  making  marriage  indissoluble  by  law, 

§  140.  Ihering,  §  32,  infers  from  this  that  the  census,  like  a  year 
of  jubilee,  freed  all  but  noxal  and  fictitious  bondsmen  at  the  end  of 
five  years  :  and  that  the  Twelve  Tables,  in  limiting  a  father  to  three 
mancipations,  disabled  him  from  selling  the  services  of  his  son  for 
more  than  fifteen  years.  As  to  noxal  surrender  of  filiifamilias  see 

4  §§  75-81. 

§  141.  Whereas  no  injuria  could  be  done  to  a  slave.     4  §  222. 

DE   TVTELTS. 

&  142.  Transeamus  nunc  ad  §  142.  Let  us  now  proceed  to 
aliara  diuisionem.  nam  ex  his  another  classification:  persons  not 

subiect  to  power,  nor  to  hand, 
personis  quae  neque   in  pote-     ^  hdd   £  mancipation)   may 

state  neque  m  manu  neque  in  gtm  be  subject  either  to  tutelary 

mancipio  sunt  quaedam  uel  in  guardianship  or  to  curatorship, 

tutela  sunt  uel   in   curatione,  Or  may  be   exempt  from  both 

quaedam  neutro  iure  tenentur.  forms  of  control.     We  will  first 


88 


DE  PERSONIS 


[i.  §§  142-154. 


uideanras  igitur  quae  in  tutela 
quae  in  curatione  sint ;  ita  enim 
intellegemus  ceteras  personas 
quae  neutro  iure  tenentur. 

Inst.  l,13pr. 

§  143.  Ac  prius  dispiciamus 
de  his  quae  in  tutela  sunt. 

Inst.  1.  c. 

§  144.  Permissum  est  itaque 
parentibus  liberis  quos  in  po- 
testate  sua  habent  testament 
Stores  dare :  masculini  quidem 
sexus  inpuberibus,  (feminini 
autem  sexus  cuiuscumque  ae- 
tatis  sint,  et  turn  (?uo)que, 
cum  nuptae  sint.  ueteres  enim 
uoluerunt  feminas,  etiamsi  per- 
fectae  aetatis  sint,  propteranimi 
leuitatem  in  tutela  esse. 

Inst.  1,13, 3. 

§  145,  Itaque  si  quis  filio 
filiaeque  testamento  tutorem 
dederit  et  ambo  ad  pubertatem 
peruenerint,  filius  quidem  desi- 
nit  habere  tutorem,  filia  uero 
nihilo  minus  in  tutela  perma- 
net ;  tantum  enim  ex  lege  lulia 
et  PapiaPoppaea  iure  liberorum 
tutela  liberanturfeminae.  loqui- 
mur  autem  exceptis  uirginibus 
Vestalibus  quas  etiam  ueteres  in 
honorem  sacerdotii  liberas  esse 
uoluerunt,  itaque  etiam  lege  xn 
tabularum  cautum  est. 

Inst.  1.  c. 

§  146.  Nepotibus  autem  nep- 
tibusque  ita  demum  possumus 
tesiamento  tutores  dare,  si  post 
mortem  nostram  in  patris  sui 
potestatem  [iure]  recasuri  non 
sint.  itaque  si  filius  meus 
mortis  meae  tempore  in  pote- 
state  mea  sit,  nepotes  ex  eo  non 
poterunt  ex  testamento  meo 
habere  tutorem,  quamuis  inpote- 
state  mea  fuerint ;  scilicet  quia 
mortuo  me  in  patris  sui  pote- 
state  futuri  sitnt.  Inst.  1.  c. 


examine  what  persons  are  subject 
to  tutelary  guardianship  and 
curatorship,  and  thus  we  shall 
know  who  are  exempt  from  both 
kinds  of  control. 

§  143.  And  first  of  persons 
subject  to  tutelary  guardianship 
or  tutelage. 

§  144.  The  law  allows  a  parent 
to  appoint  guardians  in  his  will 
for  the  children  in  his  power, 
below  the  age  of  puberty,  if  they 
are  males ;  whatever  their  age, 
and  notwithstanding  their  mar- 
riage, if  they  are  females ;  for, 
according  to  our  ancestors,  even 
women  who  have  attained  their 
majority,  on  account  of  their  levity 
of  disposition,  require  to  be  kept 
in  tutelage. 

§  145.  Accordingly,  when  a 
brother  and  sister  have  a  testa- 
mentary guardian,  on  attaining 
the  age  of  puberty  the  brother 
ceases  to  be  a  ward,  but  the  sister 
continues,  for  it  is  only  under 
the  lex  Julia  and  Papia  Poppaea 
by  title  of  maternity  that  women 
are  emancipated  from  tutelage ; 
except  in  the  case  of  vestal 
virgins,  for  these,  even  in  our 
ancestors'  opinion,  are  entitled 
on  account  of  the  dignity  of  their 
sacerdotal  function  to  be  free  from 
control,  and  so  the  law  of  the 
Twelve  Tables  enacted. 

§  146.  A  grandson  or  grand- 
daughter can  only  receive  a  testa- 
mentary guardian  provided  the 
death  of  the  testator  does  not 
bring  them  under  parental  power. 
Accordingly,  if  at  the  time  of  the 
grandfather's  death  the  father 
was  in  the  grandfather's  power, 
the  grandchildren,  though  in  the 
grandfather's  power,  cannot  have 
a  testamentary  guardian,  because 
his  death  leaves  them  in  the 
power  of  the  father. 


I.  §§  142-154.] 


DE  TVTELIS 


89 


§  147.  Cum  tamen  in  con- 
pluribus  aliis  causis  postumi 
pro  iam  natis  habeantur,  et  in 
hac  causa  placuit  non  minus 
postumis  quam  iam  natis  testa- 
mento  tutores  dari  posse,  si 
modo  in  ea  causa  sint,  ut  si 
uiuis  nobis  nascantur,  in  pote- 
state  nostra  fiant.  hos  (enim) 
etiam  heredes  instituere  possu- 
mus,  cum  extraneos  postumos 
heredes  instituere  permissum 
non  sit.  Inst.  1,13, 4. 

§  148.  {  Vocoriy  quae  in  manu 
est  proinde  ac  filiae,  item  nurui 
quae  in  filii  manu  est  proinde 
ac  nepti  tutor  dari  potest. 

§  149.  Kectissime  autem 
tutor  sic  dari  potest :  L.  TITIVM 

LIBERIS  MEIS  TVTOBEM  DO.    Bed 

et  si  ita  ecriptum  sit  LIBERIS 

MEIS    uel    VXOBI    MEAE    TITIVS 

TVTOB  ESTO,  recte  datus  intelle- 
gitur. 

§  150.  In  persona  tamen 
uxoris  quae  in  manu  est  recepta 
est  etiam  tutoris  optio,  id  est 
ut  liceat  ei  perrnittere  quern 
uelit  ipsa  tutorem  sibi  optare, 
hoc  modo :  TITIAE  \XORI  MEAE 

TVTOEIS  OPTIONEM  DO.    quo  casu 

licet  uxori  (tutorem  optare)  uel 
in  omnes  res  uel  in  unam  forte 
aut  duas. 

§  151.  Ceterum  aut  plena 
optio  datur  aut  angusta. 

§  152.  Plena  ita  dari  solet, 
ut  proximo  supra  diximus. 
angusta  ita  dari  solet— TITIAE 

VXOBI  MEAE  TVTOEIS  OPTIONEM 
DVMTAXAT  SEMEL  DO,  aut  DVM- 
TAXAT  BIS  DO. 

§  153.  Quae  optiones  pluri- 
mum  inter  se  ditferunt.  nam 
quae  plenam  optionem  habet 
potest  semel  et  bis  et  ter  et 


§  1 47.  As  in  many  other  matters 
after-born  children  are  treated  on 
the  footing  of  children  born  before 
the  execution  of  the  will,  so  it  is 
ruled  that  after-born  children,  as 
well  as  children  born  before  the 
will  was  made,  may  have  guar- 
dians therein  appointed,  provided 
that  if  born  in  the  testator's  life- 
time they  would  be  subject  to 
his  power  [and  self-successors], 
for  such  after-born  children  may 
be  instituted  heirs,  but  not  after- 
born  strangers. 

§  148.  A  wife  in  the  testator's 
hand  may  receive  a  testamentary 
guardian  as  if  she  were  a  daughter, 
and  a  son's  wife  in  the  son's  hand 
as  if  she  were  a  granddaughter. 

§  149.  The  most  regular  form 
of  appointing  a  guardian  is  in 
the  following  terms :  '  I  APPOINT 

LUCIUS    TlTIUS    GUAKDIAN    TO    MY 

CHILDREN';  the  form,  'BE  Lucius 

TlTTUS  GUARDIAN  TO  MY  CHILDREN* 

— or,  'TO  MY  WIFE  ' — is  also  valid. 

§  150.  To  a  wife  in  his  hand  a 
testator  is  permitted  to  devise  the 
selection  of  her  guardian,  that  is, 
he  may  authorize  her  to  choose 
whom  she  pleases,  in  the  follow- 
ing terms :  i  To  TITIA  MY  WIFE 

I    DEVISE    THE    SELECTION    OF    HER 

GUARDIAN';  whereupon  she  may 
nominate  either  a  general  guar- 
dian or  a  guardian  for  certain 
specified  matters. 

§  151.  The  option  of  a  guardian 
may  be  limited  or  unlimited. 

§  152.  Unlimited  option  is 
usually  devised  in  the  form  above 
mentioned  ;  limited  option  in  the 
following  terms:  'To  TITIA  MY 

WIFE    I    DEVISE     NOT    MORE     THAN 

ONE  OPTION  ' — or,  'NOT  MORE  THAN 

TWO  OPTIONS — OF  A  GUARDIAN.' 

§  153.  The  effect  of  these  forms 
is  very  different :  unlimited  option 
is  a  power  of  choosing  a  guardian 
an  indefinite  number  of  times; 


90  DE  PERSONIS  [i.  §§  142-154. 

saepius  tutorem  optare  ;    quae  limited  option  is  the  right  of  a 

uero  angustam  habet  optionem,  single  choice,  or  of  two  choices, 

si    dumtaxat    semel    data    est  as  may  happen, 
optio,  amplius  quam  semel  op- 
tare  non  potes£ ;   si  dumtaxat 
bis,  amplius  quam  bis  optandi 
facultatem  non  habei. 

§  154.     Vocantur   autem    hi  §    154.    A    guardian    actually 

qui  nominatim  testamento  tu-  nominated   by  the  will   of    the 

tores    dantur    datiui,    qui    ex  testator  is  called  a  dative  guardian; 

optione  sumuntur  optiui.  ™  *•*«?  by  selection   (of  the 

widow)    is    called     an     optative 

guardian. 

Having  examined  those  inferiorities  of  legal  capacity  which  con- 
stituted a  status,  we  now  proceed  to  examine  certain  cases  of  inca- 
pacity of  acting  independently  which,  though  analogous  to  the  former 
as  belonging  to  the  sphere  of  unequal  rights,  were  not  included  by 
the  Romans  under  the  denomination  of  status.  The  inferiorities  of 
capacity  in  infancy,  minority,  tutelary  wardship,  curatel,  were 
different  in  character  and  not  so  considerable  as  those  which  we 
have  hitherto  examined.  The  diminution  of  rights  in  a  lapse 
from  independence  to  curatel  was  less  than  the  least  capitis 
minutio,  and  accordingly  a  prodigal  who  was  interdicted  from 
the  administration  of  his  estate  and  subjected  to  the  control  of 
a  curator,  was  not  said  to  undergo  a  status  mutatio :  his  patrimony 
still  vested  in  him,  though  he  was  deprived  of  its  administration  ; 
whereas  adrogatio  and  in  manum  conventio  divested  a  person  of  the 
capacity  of  ownership  and  active  obligation  :  inferior  status,  in  a 
word,  is  incapacity  of  right ;  wardship  and  curatel  are  only  incapa- 
cities of  disposition. 

Guardianship  is  thus  defined  :  Est  autem  tutela,  ut  Servius  definit, 
jus  ac  potestas  in  capite  libero,  ad  tuendum  eum  qui  propter  aetatem 
se  defendere  nequit,  jure  civili  data  ac  permissa,  Inst.  1,  13,  1. 
'  Guardianship  is  a  right  and  power  over  an  independent  person 
conferred  or  authorized  by  the  Civil  law  for  the  protection  of  one 
who  is  incapacitated  by  age  for  self-defence.'  The  duties  of  the 
guardian  related  both  to  the  person  and  to  the  property  of  the  ward. 
In  respect  of  "his  person,  the  guardian  was  charged  with  the  care  of 
his  nurture  and  education  :  in  respect  of  his  property,  the  guardian's 
function  was  distinguished  as  either  exclusive  administration  or 
concurrent  interposition  of  authority  (rem  gerere  et  auctoritatem 
interponere).  Up  to  the  age  of  seven  the  ward  was  called  infans,  3 
§  109,  and  during  this  period  the  guardian  acted  alone  (administratio, 
negotiorum  gestio) ;  after  the  completion  of  seven  years  until  the  age 
of  puberty  (fourteen  for  males,  as  the  time  was  ultimately  fixed, 


I.  §§  155-158.]  DE  LEGITIMA  AGNATORVM  TVTELA        91 

twelve  for  females)  the  ward  acted,  and  the  guardian  concurrently 
gave  his  sanction  (auctoritas).  The  sanction  of  the  guardian  was  a 
legal  act  of  a  highly  formal  character  (actus  legitimus),  by  which  such 
legal  acts  of  his  ward,  as  would  otherwise  have  been  imperfect,  obtained 
validity.  Accordingly  the  guardian  could  not  give  his  sanction  by 
letter  or  through  an  agent,  but  had  to  be  present  himself  for  the 
purpose  at  the  time  when  the  act  of  the  ward  was  executed,  so  that 
he  might  be  a  subsidiary  party  to  it.  Ins.t.  1,  21,  2  Tutor  autem 
statim  in  ipso  negotio  praesens  debet  auctor  fieri,  si  hoc  pupillo 
prodesse  existimaverit.  post  tempus  vero  aut  per  epistulam  inter- 
posita  auctoritas  nihil  agit. 

The  sanction  of  the  guardian  was  necessary  whenever  the  act  of 
the  ward  was  one  which  might  possibly  entail  loss,  but  not  otherwise. 
Of.  2  §§  80-85,  Inst.  1.  c.  pr.  and  1  Auctoritas  autem  tutoris  in  quibus- 
dam  causis  necessaria  pupillis  est,  in  quibusdam  non  est  necessaria. 
ut  ecce  si  quid  dari  sibi  stipulentur,  non  est  necessaria  tutoris  aucto- 
ritas: quod  si  alias  pupilli  promittant,  necessaria  est:  namque  placuit 
meliorem  quidem  suam  condicionem  licere  eis  facere  etiam  sine 
tutoris  auctoritate,  deteriorem  autem  non  aliter  quam  tutore  auctore. 
unde  in  his  causis,  ex  quibus  mutuae  obligationes  nascuntur,  in 
emptionibus  venditionibus,  ...  si  tutoris  auctoritas  non  interveniat, 
ipsi  quidem,  qui  cum  his  contrahunt,  obligantur,  at  invicem  pupilli 
non  obligantur  In  respect  of  administration  of  property  the 
guardian  incurred  a  quasi-contractual  obligation,  and  was  accordingly 
liable  to  the  judicium  or  actio  tutelae. 

In  the  time  of  Gaius,  women  continued  subject  to  guardianship 
after  the  age  of  puberty :  the  functions  of  the  guardian  were  in  their 
case  confined  to  auctoritas,  which  in  most  cases  was  a  mere  formality  ; 
the  power  of  administration  vested  in  the  woman,  §  190. 

§  147.  For  an  account  of  the  different  classes  of  Postumi  see  2 
§  130,  comm. 

§  148.  In  filii  manu  must  be  regarded  as  an  inaccurate  expression  : 
for  filiusfamilias  was  incapable  of  all  civil  rights,  including  manus, 
and  could  only  serve  as  a  conduit-pipe  by  which  the  right  of  manus 
vested  in  his  father. 

§  154.  In  the  Code  and  Digest  of  Justinian  the  term  tutor  dativus 
is  used  to  signify  a  guardian  appointed  by  a  magistrate.  Cod.  5,  50,  5 ; 
Dig.  46,  6,  7. 

DE  LEGITIMA   AGNATORVM   TVTELA. 

§  155.     Quibus    testamento          §  155.  In   default   of  a   testa- 

quidem  tutor  datus  non  sit,  iis      mentary  guardian  the  statute  of 

,  ,,   7    7  \  ,.      the   Twelve   Tables   assigns  the 

exlegexn<ta^amm>agnati      guardianship  to  the  nearest  ag- 

sunt  tutores,  qui  uocantur  legi-  nates,  who  are  hence  called  statu- 
timi.  Inst.  1, 15  pr.  tory  guardians. 


DE  PERSONIS 


[i.  §§  155-158. 


§  156.  Sunt  autem  agnati 
per  uirilis  sexuspersonas  cogna- 
tione  iuncti,  quasi  a  patre 
cognati,  ueluti  frater  eodem 
patre  natus,  fratris  filius  ne- 
posue  ex  eo,  item  patruus  et 
patrui  filius  et  nepos  ex  eo.  at 
hi  qui  per  feminini  sexus  per- 
sonas  cognatione  coniunguntur 
non  sunt  agnati,  sed  alias 
natural!  iure  cognati.  itaque 
inter  auunculum  et  sororis 
fiJiuin  non  agnatio  est,  sed 
cognatio.  item  amitae,  mater- 
terae  filius  non  est  mini  agnatus, 
sed  cognatus,  et  inuicein  scilicet 
ego  illi  eodem  iure  coniungor, 
quia  qui  nascuntur  patris,  non 
matris  familiam  secuntur. 

Inst.  1,15,1. 

§  157.  Et  olim  quidem, 
quantum  ad  legern  xii  tabu- 
larum  attinet,  etiam  feminae 
agnatos  habebant  tutores.  sed 
postea  lex  Claudia  lata  est 
quae,  quod  ad  feminas  attinet, 
(agnatorum}  tutelas  sustulit ; 
itaque  masculus  quidem  in- 
pubes  fratrem  puberem  aut 
patruum  habet  tutorem,  femina 
uero  talem  habere  tutorem  non 
potest. 

§158.  Sed  agnationis  quidem 
ius  capitis  deminutione  peri- 
mitur,  cognationis  uero  ius  eo 
modo  non  commutatur,  quia 
ciuilis  ratio  ciuilia  quidem  iura 
corrumpere  potest,  naturalia 
uero  non  potest.  Inst.  1, 15, 3. 


§  156.  Agnates  (3  §  10)  are 
persons  related  through  males, 
that  is,  through  their  male  ascen- 
dents :  as  a  brother  by  the  same 
father,  such  brother's  son  or  son's 
son ;  a  father's  brother,  his  son 
or  son's  son.  Persons  related 
through  female  ascendents  are 
not  agnates  but  simply  cognates. 
Thus,  between  an  uncle  and  his 
sister's  son  there  is  not  agnation, 
but  cognation  :  so  the  son  of  my 
aunt,  whether  she  is  my  father's 
sister,  or  my  mother's  sister, 
is  not  my  agnate,  but  my  cog- 
nate, and  vice  versa ;  for  chil- 
dren are  members  of  their  father's 
family,  not  of  their  mother's. 


§  157.  In  former  times,  the 
statute  of  the  Twelve  Tables  made 
females  as  well  as  males  wards  of 
their  agnates :  subsequently  a  law 
of  the  EmperorClaudius  abolished 
this  wardship  in  the  case  of  fe- 
males :  accordingly,  a  male  below 
the  age  of  puberty  has  his  brother 
above  the  age  of  puberty  or  his 
paternal  uncle  for  guardian,  but 
a  female  cannot  have  such  a 
guardian. 

§  158.  Capitis  deminutio  extin- 
guishes rights  by  agnation,  while 
it  leaves  unaffected  rights  by  cog- 
nation, because  civil  changes  can 
take  away  rights  belonging  to 
civil  law  (jus  civile),  but  not  rights 
belonging  to  natural  law  (jus 
naturale). 


§  156.  As  to  this  definition  of  agnati  see  Moyle's  note  to  Inst. 
1,  15,  1.  The  maxim  here  enunciated  is  calculated  to  give  a  false 
idea  of  the  relation  of  the  institutes  of  jus  gentium  to  those  of  jus 
civile.  Title  by  cognation  is  just  as  much  an  institute  of  positive 
law  as  title  by  agnation,  though  cognation,  or  blood-relationship,  is  in 
itself  a  natural  and  permanent  tie,  while  agnation  is  an  artificial  one, 
and  therefore  only  occasional.  The  synthesis  of  title  and  right  in  jus 


I.  §§  159-164.]      DE  CAPITIS  MINVTIONE  93 

civile  may  be  freakish  and  capricious,  while  that  in  jus  gentium  may 
be  reasonable  and  expedient ;  but  both  are  equally  positive  institu- 
tions, and  both  are  equally  mutable  and  liable  to  be  overruled. 
Accordingly,  the  specious-sounding  maxim,  that  revolutions  in  status 
or  civil  condition  cannot  affect  such  rights  as  are  annexed  to  natural 
titles,  crumbles  away  as  soon  as  we  examine  it,  for  we  find  that  it 
only  holds  good  of  the  most  insignificant  change,  the  minima 
capitis  minutio,  3  §  27,  and  that  maxima  and  media  capitis  minutio 
extinguish  title  by  cognation,  which  belongs  to  jus  gentium,  as  well  as 
title  by  agnation,  which  belongs  to  jus  civile.  Inst.  1,  16,  6. 

The  truth  is,  that  the  effects  of  a  collision  of  Civil  and  Natural 
law  fall  under  two  very  different  classes,  which  it  is  important  to 
distinguish. 

1.  If  the  command   of  the   civil   lawgiver,    under   the   sway   of 
motives  financial,  political,  ethical,  or  religious,  is  highly  imperious 
and  absolutely  compulsive,  all  natural  titles   with  which  it   may 
come  in  conflict  are  absolutely  void  and  inoperative :   e.  g.  the  Sc. 
Velleianum,  prohibiting  suretyship  of  women,  allowed  no  naturalis 
obligatio  to  be  produced  by  any  such  suretyship :   and  so  with  the 
laws  prohibiting  gambling  and  usury. 

2.  If  the  command  of  the  civil  law  is  less  peremptory  and  abso- 
lute, it  may  deprive  any  conflicting  natural  title  of  plenary  force, 
and  yet  leave  to  it  a  naturalis  obligatio  capable  of  acquiring  efficacy 
by  some  machinery  of  positive  law ;   e.  g.  the  Sc.  Macedonianum, 
prohibiting  money  loans  to  a  filiusfamilias  without  the  sanction  of 
his  father,  made  them  irrecoverable  by  action,  and  yet  the  courts 
recognized  in  the  borrowing  filiusfamilias  a  naturalis  obligatio,  which 
was  capable  of  novation,  Dig.  46,  2,  19,  and  a  bar  to  recovery  back 
(condictio  indebiti)  in  case  of  actual  repayment,  Dig.  14,  6,  10. 

When  Justinian  consolidated  the  law  of  intestate  succession  and 
made  the  right  of  succession  depend  on  cognation  instead  of  agnation, 
he  made  a  corresponding  change  in  the  obligation  of  guardianship, 
which  henceforth  devolved  on  cognates  instead  of  agnates,  women 
as  formerly,  with  the  exception  of  mothers  and  grandmothers,  being 
excluded  from  the  office,  Nov.  118,  5. 

DE   CAPITTS   MINVTIONE. 

§  159.     Est    autem     capitis         §   159.  Capitis   deminutio  is  a 

deminutio   prioris   status    per-  change  of  a  former  status  which 

mutatio.     eaque  tribus    modis  occurs  in  three  ways,  i.  e.  it  is 

accidit:    nam  aut  maxima  est  either  greatest,  minor  or  mediate, 

capitis   deminutio,  aut    minor  or  least, 
quam  quidam  mediam  uocant, 
aut  minima.           Inst.  1, 16pr. 


94 


DE  PERSONIS 


[i.  §§  159-164. 


§  160.  Maxima  est  capitis 
deminutio,  cum  aliquis  simul 
et  ciuitatem  et  libertatem 
amittit;  quae  accidit  incensis, 
qui  ex  forma  censuali  uenire 

iubentur ;  quod  ius  p 1 

— •  ex      lege  — | qui 

contra  earn  legem  in  urbe  Roma 
do|micilium  habuerint ;  item 
feminae  quae  ex  senatuscon- 
sulto  Claudiano  ancillae  fitint 
eorum  dominorum  quibus  inui- 
tis  et  denuntiantibus  cum  seruis 
eorum  coierint.  Inst.  1, 16, 1. 

§  161.  Minor  siue  media 
est  capitis  deminutio,  cum 
ciuitas  amittitur,  libertas  reti- 
netur ;  quod  accidit  ei  cui  aqua 
et  igni  interdictum  fuerit. 

Inst.  1, 16,  2. 

§  162.  Minima  est  capitis 
deminutio,  cum  et  ciuitas  et 
libertas  retinetur,  sed  status 
hominis  commutatur ;  quod  ac- 
cidit in  his  qui  adoptantur, 
item  in  his  quae  coemptionem 
faciunt,  et  in  his  qui  mancipio 
dantur  quique  ex  mancipatione 
manumittuntur ;  adeo  quidem, 
ut  quotiens  quisque  mancipe- 
tur  aut  manumittatur,  totiens 
capite  deminuatur. 

Inst.  1,16, 3. 

§  163.  Nee  solum  maiori&ws 
(capitisy  deminutionibus  ius 
agnationis  corrumpitur,  sed 
etiam  minima ;  et  ideo  si  ex 
duobus  liberis  alterum  pater 
emancipauerit,  post  obitum 
eius  neuter  alter!  agnationis 
iure  tutor  esse  poterit. 

§  164.  Cum  autem  ad  agna- 
tos  tutela  pertineat,  non  simul 
ad  omnes  pertinet,  sed  ad  eos 
tantum  qui  proximo  gradu  sunt. 


§  160.  The  greatest  capitis  de- 
minutio is  the  simultaneous  loss 
of  citizenship  and  freedom,  which 
happens  to  those  who  having 
evaded  inscription  on  the  censo- 
rial register  are  sold  into  slavery 
according  to  the  regulations  of 

the  census,  also  under  the 

law  when  persons  in  violation  of 
it  make  Rome  their  place  of  resi- 
dence, and  also  under  the  Sc. 
Claudianum  in  case  of  persistent 
intercourse  on  the  part  of  a  free 
woman  with  another  person's 
slave  in  spite  of  the  dissent  and 
denunciation  of  the  owner. 

§  161.  Minor  or  intermediate 
loss  of  status  is  loss  of  citizenship 
unaccompanied  by  loss  of  liberty, 
and  is  incident  to  interdiction  of 
fire  and  water. 


§  162.  There  is  the  least  capi- 
tis deminutio  retaining  citizenship 
andfreedom  when  a  man's  position 
in  the  family  only  is  changed, 
which  occurs  in  adoption,  coemp- 
tion, and  in  the  case  of  those 
given  in  mancipium  to  be  after- 
wards manumitted,  so  that  after 
each  successive  mancipation  and 
manumission  a  capitis  deminutio 
takes  place.  • 


§  163.  Not  only  by  the  two 
greater  losses  of  status  are  rights 
of  agnation  extinguished,  but  also 
by  the  least :  accordingly,  if  one 
of  two  children  is  emancipated, 
the  elder  cannot  on  the  father's  de- 
cease be  guardian  to  the  younger 
by  right  of  agnation. 

§  164.  When  agnates  are  en- 
titled to  be  guardians,  it  is  not 
all  who  are  so  entitled,  but  only 
those  of  the  nearest  degree. 


I.  §§  159-164.]      DE  CAPITIS  MINVTIONE  95 

§  160.  Ulpian  also  refers  to  the  penalty  incurred  by  incensi 
(11,  11  cum  inceiisus  aliquis  venierit ;  cf.  Cic.  Pro  Caec.  34,  99). 
The  lex,  the  name  of  which  is  now  illegible,  may  possibly  be  the 
lex  Aelia  Sentia,  which  by  one  of  its  provisions  recalled  into  slavery 
dediticii,  who  resided  in  Rome  or  within  a  certain  distance  from  it 
(§  27),  though  there  is  the  difficulty  that  it  would  be  inaccurate  to 
speak  of  such  freedmen  suffering  loss  of  citizenship  as  well  as 
liberty.  Other  grounds  of  reducing  to  slavery  existed  at  various 
times,  as  surrender  by  the  pater  patratus  to  a  foreign  state  for  an 
offence  against  international  law,  Livy,  5,  36,  or  evasion  of  military 
service  (populus  quum  eum  vendidit  qui  miles  factus  non  est,  Cic. 
Pro  Caec.  34,  11  ;  Ulp.  11,  11),  or  capture  by  the  enemy,  §  129,  or 
condemnation  for  a  capital  crime,  which  made  the  convict  a  slave 
of  punishment  (servus  poenae,  Inst.  1,  16,  1),  i.e.  reduced  him  to 
penal  servitude,  or  condemnation  of  a  freedman  for  ingratitude 
towards  his  patron  (libertiis  ingratus  circa  patromim  condemnatus, 
ibid.)  whereupon  he  forfeited  his  freedom,  or  collusion  of  a  freeman 
in  consenting  to  be  sold  as  a  slave  on  condition  of  sharing  the 
purchase-money  (cum  liber  homo,  major  viginti  annis,  ad  pretium 
participandum  sese  venundari  passus  est,  Inst.  1,  3,  4).  After  the 
price  had  been  paid,  the  vendor  disappeared,  the  supposed  slave 
recovered  his  liberty  by  a  liberalis  causa,  and  the  purchaser  was  left 
without  his  slave  and  without  his  money.  The  praetor,  to  check 
this  fraud,  allowed  the  purchaser  to  defend  himself  by  exceptio  doli, 
and  senatusconsulta  subsequently  enacted,  that  if  the  person  sold 
was  twenty  years  old  at  the  time  of  the  sale  or  partition  of  the 
price,  he  should  really  become  the  slave  of  the  purchaser,  Dig. 
40,  12,  7  pr.  1. 

The  libertus  ingratus  would  exemplify  a  fall  from  the  condition 
of  libertinus  to  that  of  servus  ;  any  of  the  other  instances  might  be 
a  case  of  a  fall  from  ingenuus  to  servus ;  the  fall  from  ingenuus  to 
libertinus  would  also  be  an  analogous  kind  of  degradation.  Thus  by 
the  Sc.  Claudianum  a  freewoman  (ingenua)  who  had  commerce  with 
a  slave  with  the  consent  of  his  proprietor  procreated  slaves  without 
forfeiting  her  own  freedom,  §  84  ;  she  lost  status,  however,  for  she 
became  the  freedwoman  of  the  proprietor,  Paulus,  4,  10,  2  •  Tac. 
Ann.  12,  53. 

§  161.  Under  the  category  of  Civitas,  as  there  are  three  classes, 
civis,  latinus,  peregrinus,  so  there  are  three  possible  degradations, 
the  fall  from  civis  to  Latinus,  instanced  in  the  emigrant  to  a  Latin 
colony,  §  131  ;  the  fall  from  civis  to  peregrinus,  instanced  in  the 
interdiction  or  deportation  of  a  civis ;  and  the  fall  from  Latinus  to 
peregrinus,  instanced  when  the  same  events  happened  to  Latinus. 
A  lapse  from  liber  to  servus  was  a  dissolution  of  marriage,  for 


96  DE  PERSONIS  [i.  §§  159-164. 

servus  was  incapable  of  matrimony :  a  lapse  from  civis  to  Latinus 
or  peregrinus  was  a  dissolution  of  civil  wedlock  (connubium),  for 
this  could  only  subsist  between  cives  ;  but  if  both  parties  consented, 
they  might  continue  in  gentile  wedlock  (matrimonium),  Cod.  5,  17,  1. 
The  confiscation  of  property  or  universal  succession  of  the  fiscus, 
which  accompanied  greatest  and  minor  loss  of  status,  was  not  an 
incident  of  the  latter  kind  of  capitis  minutio  (e.  g.  it  did  not  happen 
when  civis  became  Latinus  by  emigration ;  and  an  alien,  as 
a  citizen  became  by  deportation,  was  capable  of  holding  property), 
but  was  a  special  provision  of  the  criminal  code.  (For  an  account 
of  the  different  Roman  forms  of  banishment  see  Mommsen,  Rom. 
Strafr.  5,  pt.  7.) 

The  political  elements  of  civitas,  suffragium  and  honores,  were 
forfeited  by  infamy  (infamia)  or  loss  of  civic  honour  (existi- 
matio) ;  and  hence  arises  the  question  whether  infamia  is  to 
be  regarded  as  a  capitis  minutio  (see,  on  this  subject,  Greenidge, 
Infamia). 

Austin,  in  laying  the  bases  of  jurisprudence,  has  referred  to  the 
law  of  honour  to  illustrate  the  difference  of  positive  law  from  all  law 
not  positive  ;  but  in  Kome  the  law  of  honour,  as  the  law  of  reli- 
gion in  most  modern  states,  was  partially  taken  up  into  positive 
legislation.  The  public  sentiments  of  esteem  and  disesteem,  that  is 
to  say,  were  armed  with  political  sanctions,  and  thus  certain  pro- 
ceedings were  discouraged  which  were  not  otherwise  prohibited  by 
positive  law,  and  the  due  application  of  these  sanctions  was  the 
function  of  a  special  organ  appointed  by  the  legislator.  This 
organ  was  the  censor,  who  had  both  a  discretionary  power  of 
branding  a  man  with  ignominy  by  an  annotation  against  his 
name  in  the  civic  register  (notatio,  subscriptio  censoria),  and,  as 
revisor  of  the  lists  of  the  senate,  the  knights,  and  the  tribes, 
enforced  the  disabilities  of  infamy  by  removing  the  infamous 
person  from  any  of  those  bodies.  As  the  Comitia  Centuriata, 
as  well  as  the  Comitia  Tributa,  had  in  later  times  been  con- 
nected with  the  division  into  tribes,  the  tribeless  man  (aerarius) 
forfeited  his  vote  and  became  incapable  of  military  service,  Livy, 
7,  2.  These  graver  consequences  of  infamy  were  not  in  the  dis- 
cretion of  the  censor,  but  governed  by  strict  rules  of  consue- 
tudinary law  (jus  moribus  introductum).  The  law  of  infamia, 
as  established  by  the  censor,  came  to  be  also  recognized  by  the 
praetor  in  his  edict  (cf.  Dig.  3,  1,  1,  8  Qui  edicto  praetoris  ut 
infancies  notantur),  who  made  infamy  not  only  a  consequence 
of  condemnation  in  any  criminal  trial  (publicum  judicium),  but 
also  of  condemnation  in  certain  civil  actions  founded  on  delict, 
such  as  theft,  rapine,  outrage,  fraud ;  or  on  certain  contracts,  such 


I.  §§  159-164.]       DE  CAPITIS  MINVTIONE  97 

as  partnership,  agency  (mandatum),  deposit ;  or  on  quasi  contract, 
such  as  guardianship  ;  or  of  insolvency  (bona  possessa,  proscripta, 
vendita) ;  or,  without  any  judicial  condemnation,  was  annexed  to 
certain  violations  of  the  marriage  laws,  such  as  bigamy  or  the 
marriage  of  a  widow  before  the  termination  of  her  year  of  mourning, 
and  to  the  pursuit  of  certain  professions,  such  as  that  of  stage- 
player  or  gladiator.  In  some  of  these  latter  instances  consuetu- 
dinary law,  as  above  intimated,  inflicted  positive  sanctions  on  acts 
that  originally  had  only  been  prohibited  by  the  law  of  honour. 
In  view  of  these  consequences,  infamia  may  at  one  time  have  been 
regarded  as  capitis  minutio.  Cicero  pro  Quinctio  speaks  of  a 
suit  involving  existimatio  as  a  causa  capitis  (cf.  pro  Kosc.  Com.  6), 
and  Tertullian,  the  father  of  the  Church,  who  was  noted  for  his 
knowledge  of  Roman  law,  and  possibly  was  identical  with  the  jurist 
of  that  name,  of  whom  five  fragments  are  preserved  in  the  Digest, 
speaks  of  infamia  as  capitis  minutio,  De  Spectaculis,  22,  Scenicos 
manifesto  damnant  ignominia  et  capitis  deminutio.  But  the  poli- 
tical rights  of  civitas  had  ceased  to  be  of  importance  under  the 
emperors,  and  we  are  expressly  told  in  the  Digest  that  only  death 
or  loss  of  citizenship  can  be  understood  to  affect  a  man's  caput, 
Modestinus  in  Dig.  50,  16,  103. 

Besides  extinguishing  the  political  or  public  elements  of  civitas, 
infamia  affected  to  a  certain  extent  its  private  elements,  both 
commercium  and  connubium  ;  the  former,  as  we  shall  see,  in  respect 
of  the  office  of  cognitor,  4  §  124  (cf.  Dig.  3,  1,  de  postulando),  and 
the  latter  in  respect  of  the  disabilities  of  celibacy  under  the  lex 
Julia,  which  were  not  removed  by  marriage  with  an  infamis.  Both 
these  classes  of  disability  had  practically  vanished  even  before  they 
were  abolished  in  the  time  of  Justinian. 

This  seems  the  proper  place  to  notice  certain  inequalities  of  con- 
dition, analogous  to  the  old  distinctions  of  status,  which  grew  up 
subsequently  to  the  time  of  Gaius  in  the  later  ages  of  Kome,  and 
some  of  which  survived  the  fall  of  the  Boman  empire.  From  the 
establishment  of  the  empire  the  army  was  caressed  by  each  suc- 
ceeding despot,  and  privileges  of  various  kinds  were  so  accumulated 
on  the  military  service,  that  the  relation  of  the  soldiery  to  the  rest 
of  the  world  very  much  resembled  the  ancient  relation  of  Bomanus 
to  peregrinus.  The  pre-eminence  of  the  military  caste  was  the  result 
of  elevation  ;  other  unprivileged  castes  were  created  by  depression. 
As  the  new  religion  grew  to  political  power,  zealous  legislators  were 
eager  to  promote  its  ascendency  by  the  means  of  political  sanctions. 
Pagans,  Jews,  heretics,  apostates,  protestants,  papists,  were  suc- 
cessively frowned  upon  by  the  legislator,  and  for  a  long  season 
subjected  to  incapacities  and  disabilities  as  great  as,  or  greater  than, 


98  DE  PERSONIS  [i.  §§  159-164. 

those  which  weighed  upon  infames :  until  by  a  change  in  political 
conceptions  these  inequalities  of  right  have  been  again  levelled  and 
almost  obliterated  in  most  of  the  codes  of  modern  Europe.  See  also 
the  remarks  on  Colonatus,  3  §  145. 

§  162.  In  the  category  of  domestic  position  there  are  three  classes, 
(i)  sui  juris,  or  paterfamilias  and  materfamilias ;  (2)  filiusfamilias 
and  filiafamilias  ;  and  (3)  mancipium  :  but  there  are  only  two  possible 
degradations,  (i)  from  sui  juris  to  alieni  juris,  which  occurs  in 
adrogation  and  the  in  manum  conventio  of  a  woman  previously 
independent ;  and  (2)  from  films-  or  filiafamilias  to  mancipium, 
which  occurs  in  noxal  surrender,  in  emancipation,  in  adoption 
as  implying  mancipation,  and  in  the  remancipation  of  a  woman  by 
her  husband  or  the  person  who  held  her  in  manu  in  virtue  of  a 
fiduciary  coemption.  The  descent  from  sui  juris  to  mancipium 
cannot  occur,  because  the  only  persons  capable  of  passing  into  the 
condition  of  mancipium  by  the  process  of  mancipation  were  filius- 
and  filiafamilias  and  women  in  manu,  i.  e.  persons  already  alieni 
juris. 

In  the  exposition  of  capitis  minutio,  and  particularly  of  the  third 
and  last  kind,  I  have  adopted  the  theory  of  Savigny  as  being  the 
most  tenable,  and  forming  the  most  harmonious  system  of  legal 
conceptions.  I  must  now  briefly  notice  an  opposing  theory,  and 
the  objections  that  may  be  raised  against  that  of  Savigny.  Some 
expositors  hold  that  capitis  minutio  minima  did  not  necessarily  and 
essentially  involve  any  degradation,  any  downward  step  on  the 
ladder  of  status,  but  might  be  merely  a  horizontal  movement  on  the 
same  platform,  a  transit  from  family  to  family,  a  disruption  of 
the  ties  of  agnation,  a  cessation  of  membership  in  a  given  civil 
group.  (See  on  this  subject  Dr.  Moyle's  Excursus,  Inst.  Bk.  1,  and 
Professor  Goudy's  App.  to  Muirhead's  Roman  Law,  second  ed.,  p.  426, 
where  Mommsen's  explanation  is  given.)  This  opinion  is  founded 
on  the  authority  of  Paulus,  undeniably  an  eminent  juris  auctor, 
who  defines  the  least  diminution  of  head  as  follows  :  Dig.  4,  5,  11. 
'  Capital  diminution  is  of  three  orders,  greatest,  minor,  least ;  as 
there  are  three  things  that  we  have,  liberty,  citizenship,  family. 
The  universal  loss  of  freedom,  citizenship,  family,  is  the  greatest 
capital  diminution ;  loss  of  citizenship  while  liberty  is  retained  is 
minor  capital  diminution  ;  when  liberty  and  citizenship  are  retained, 
and  family  only  is  changed,  there  is  the  least  capital  diminution.' 
Consistently  with  this  definition  Paulus  affirms  that  the  children 
of  adrogatus  suffer  capitis  minutio  minima :  Dig.  4,  5,  3  pr.  '  The 
children  who  follow  an  adrogated  parent  suffer  capital  diminution, 
as  they  are  dependent  and  have  changed  family ' :  here,  then,  if 
Paulus  is  right,  we  have  capitis  minutio  without  any  degradation, 


I.  §§  159-164.]       DE  CAPITIS  MINVTIONE  99 

any  loss  of  .rank ;  for  the  children  of  adrogatus  have  the  same 
status  of  filiifamilias  after  their  father's  adrogation  as  they  had 
before,  although  in  a  different  family.  The  proposition,  however, 
that  the  children  of  adrogatus  suffer  capitis  minutio  is  not  confirmed 
by  any  other  jurist,  and  Savigny  supposes  that  the  doctrine  was 
peculiar  to  Paulus,  and  was  in  fact  inaccurate.  Another  objection 
to  the  theory  of  Savigny,  though  not  so  serious  as  the  opposing 
authority  of  Paulus,  is  presented  by  the  operation  of  in  manum 
conventio. 

When  an  independent  woman  made  a  coemption  she  undoubtedly 
declined  in  status,  as  before  coemption  she  was  sui  juris,  and  after 
coemption  she  is  filiafamilias.  But  a  filiafamilias  who  made  a 
coemption  apparently  suffered  no  degradation:  the  definitive  result 
of  the  coemption  leaves  her,  as  before,  filiafamilias,  and  that, 
apparently,  without  having  passed  through  any  lower  stage ;  for 
Gaius  expressly  says  that  the  lex  mancipii,  or  formula  of  mancipa- 
tion in  coemption,  was  not  calculated  to  reduce  the  woman  to  a 
servile  condition,  §  123.  Gaius  tells  us,  however,  that  coemption 
operates  a  capitis  minutio,  §  162,  without  limiting  the  effect  to  the 
case  of  a  woman  sui  juris.  The  operation  of  coemption  to  produce 
capitis  minutio  is  also  mentioned  by  Ulpian,  and  again  without  any 
express  limitation  to  the  case  of  an  independent  woman:  11,  13. 
'  There  is  least  capital  diminution  when  both  citizenship  and  freedom 
are  unimpaired,  and  only  position  in  household  life  is  changed,  as 
occurs  in  adoption  and  subjection  to  hand.'  If  filiafamilias  under- 
went capitis  minutio  when  she  made  a  coemption,  her  case  dis- 
proves our  theory  that  all  capitis  minutio  requires  degradation :  but 
Savigny  assumes  that,  though  in  these  passages  there  is  no  express 
limitation  to  the  case  of  independent  women,  yet  this  limitation 
must  be  understood ;  and  there  is  nothing  outrageous  in  this 
supposition. 

While,  however,  these  objections  to  the  hypothesis  of  Savigny 
are  doubtless  serious,  on  the  other  hand  they  are  compensated  by 
legal  facts  which  seem  absolutely  irreconcilable  with  the  adverse 
hypothesis,  the  cases  of  Flamen  Dialis  and  Virgo  Vestalis.  Gel- 
lius,  1,  12.  'As  soon  as  a  vestal  virgin  is  selected  and  conducted 
to  the  shrine  of  Vesta  and  delivered  to  the  pontifices,  she  instanta- 
neously, without  emancipation  and  without  capital  diminution, 
is  freed  from  parental  power  and  acquires  testamentary  capacity. 
....  Moreover,  in  the  commentary  of  Labeo  on  the  Twelve  Tables 
it  is  stated  that  a  vestal  virgin  is  neither  heiress-at-law  to  any  one 
who  dies  intestate  nor,  if  she  herself  die  intestate,  leaves  any  heir- 
at-law,  and  that  in  this  event  her  property  lapses  to  the  state.' 
For  Flamen  Dialis,  see  3  §  114.  If  mere  transit  from  a  family 

H  2, 


100  DE  PERSONIS  [i.  §§  159-164. 

and  ceasing  to  belong  to  a  given  group  of  agnates  constituted 
capitis  minutio,  and  was  its  definition,  then  the  vestal  virgin  must 
inevitably  have  suffered  capitis  minutio  ;  the  fact  that  she  did  not, 
in  spite  of  leaving  her  family  and  snapping  the  agnatic  tie,  is  at 
once  conceivable,  on  the  supposition  that  there  is  no  capitis  minutio 
without  degradation. 

Unless  capitis  minutio  minima  involved  a  downward  step  on  the 
stair  of  status,  it  has  no  analogy  to  the  other  forms  of  capitis 
minutio,  and  it  is  not  obvious  why  it  should  have  the  same  generic 
appellation,  or  why  it  should  be  handled  in  the  same  department  of 
the  code.  The  rupture  of  the  ties  of  agnation,  extinguishing  rights 
of  intestate  succession,  might  be  a  loss,  but  it  was  not  a  loss  from 
inferiority  of  privilege  ;  it  was  a  loss  of  an  equal  among  equals ;  it 
was  more  like  the  loss  of  dos  which  a  husband  might  incur  by 
divorce  of  his  wife,  or  an  heir  by  neglecting  to  accept  a  succession 
within  the  appointed  period  (cretio),  2  §  164 ;  neither  of  which  persons 
were  said  to  undergo  capitis  minutio,  because  neither  of  them 
suffered  a  reduction  of  the  universitas  juris  called  status. 

On  the  whole,  then,  Savigny  seems  justified  in  considering  the 
definition  given  by  Paulus  and  his  statement  respecting  the  children 
of  adrogatus  as  inexact.  f*aulus  himself,  in  speaking  of  emancipa- 
tion, implies  the  true  conditions  of  capitis  minutio :  Dig.  4,  5,  3 
Emancipate  filio  et  ceteris  personis  capitis  minutio  manifesto  accidit, 
cum  emancipari  nemo  possit  nisi  in  imaginariam  servilern  causam 
deductus ;  aliter  atque  cum  servus  manumittitur,  quia  servile  caput 
nullum  jus  habet  ideoque  nee  minui  potest. 

Although  rupture  of  the  ties,  and  forfeiture  of  the  rights,  or 
release  from  the  duties,  of  agnation,  were  not  the  essence  of  capitis 
minutio  minima,  yet  they  were  among  its  principal  consequences. 
The  capite  minutus  lost  his  claim  as  suus  heres  at  civil  law,  that  is, 
his  right  to  succeed  to  an  intestate  ascendent,  or  to  be  instituted 
heir  in  his  will  or  formally  disinherited.  These  effects  of  capitis 
minutio  were,  however,  counteracted  to  some  extent  by  jus  prae- 
torium  or  the  legislation  of  the  praetor  (bonorum  possessio  unde 
liberi :  and  contra  tabulas).  He  also  lost  his  right  as  legitimus 
heres  at  civil  law,  that  is,  his  right  to  succeed  as  nearest  agnate  to 
an  intestate  collateral ;  and  here  the  praetor  only  so  far  interposed 
to  assist  the  capite  minutus,  as,  in  default  of  all  persons  entitled 
as  nearest  agnates,  to  call  him  to  the  succession  in  the  inferior  order 
of  cognates  (bonorum  possessio  unde  cognati).  The  collateral  civil 
heir  was  called  legitimus  heres  (statutory  heir)  because  his  title  was 
founded  on  the  statutes  of  the  Twelve  Tables,  which,  in  default  of 
self-successors,  called  the  nearest  collateral  agnates  to  the  succession. 
Subsequent  statutes  created  certain  quasi  agnates  or  persons  entitled 


I.  §§  164  a-172.]  DE  LEGITIMA  PATRONOKVM  TVTELA  101 

to  succeed  in  the  same  order  as  if  they  were  agnates,  who  hence 
were  also  called  legitimi  heredes  ;  e.  g.  children  entitled  to  succeed  to 
an  intestate  mother  under  the  Sc.  Orphitianum,  and  mothers  entitled 
to  succeed  to  intestate  children  under  the  Sc.  Tertullianum.  The 
effect  of  capitis  minutio  in  extinguishing  title  to  succeed  was  confined 
to  legitimus  heres  created  by  the  Twelve  Tables,  and  did  not  extend 
to  the  legitimus  heres  created  by  these  subsequent  statutes. 

Besides  the  effects  of  capitis  minutio  which  followed  logically 
from  its  consisting  in  a  degradation  or  fall  in  status,  and  from  its 
involving  elimination  from  a  given  family  or  a  certain  circle  of 
agnates,  it  had  certain  other  abnormal  or  arbitrary  consequences — 
consequences,  that  is,  which  may  have  once  been  explicable  on 
known  maxims  of  the  civil  law,  but  which  are  now  inexplicable, 
whose  rationale  had  perhaps  been  lost  even  in  the  classical  period, 
and  is  certainly  now  past  conjecture.  Such  is  the  rule,  that  capitis 
minutio  minima  of  an  independent  person  extinguished  the  debts  of 
capite  minutus.  It  is  true  that  the  injustice  operated  by  this  rule 
of  civil  law  in  the  case  of  adrogatio  was  counteracted  by  the  inter- 
position of  the  praetor,  but,  as  at  civil  law  filiusfamilias,  though 
incapable  of  rights,  was  capable  of  obligations,  it  is  not  obvious  why 
even  at  civil  law  a  man's  debts  should  have  been  cancelled  by  his 
degradation  from  the  status  of  paterfamilias  to  that  of  filiusfamilias. 
3  §  84,  comm. ;  4  §  38. 


DE   LEGITIMA    PATRONORVM    TVTELA. 


§  164  «. 

(4  uersus  in  C  legi  nequeunt) 
1 urbe  I 


(2  uersus  in  C  legi  nequeunt) 

1 — in    urbe    Roma 

itaque  ut  seru est 

1 sunt 1 


(2  uersus  in  C  legi  nequeunt) 
— ease — I — simile 1 


§  165.  Ex  eadem  lege  xn 
tabularum  liber£arum  et  in- 
puberum  libertforum  tutela  ad 
patronos  liberosque  eorum  per- 
tinet.  quae  et  ipsa  tutela  legi- 
tima  uocatur,  ncm  quid  nomi- 
natim  ea  lege  de  hac  tutela 
c&uetur,  sed  quia  proinde  ac- 
cepta  est  per  interpretationem, 
a£que  si  uerbis  legis  introducta, 


§  165.  The  same  statute  of  the 
Twelve  Tables  assigns  the  guar- 
dianship of  freedwomen  and  of 
freedmen  below  the  age  of  puberty 
to  the  patron  and  the  patron's 
children,  and  this  guardianship, 
like  that  of  agnates,  is  called  statu- 
tory guardianship,  not  that  it  is 
anywhere  expressly  enacted  in  the 
Twelve  Tables,  but  because  the 


102 


DE  PERSONIS 


[i.  §§164a-172. 


esset.  eo  enim  ipso,  quod  here- 
ditates  libertorum  libertarum- 
que,  si  infestati  decessissent, 
iusserat  lex  ad  patronos  libe- 
rosue  eorum  pertinere,  credi- 
derunt  ueteres  uoluisse  legem 
etiam  tutelas  ad  eos  pertinere, 
quia  et  agnatos,  quos  ad  here- 
ditatem  uocauit,  eosdem  et  tu- 
tores  esse  iusserat. 

Inst.  1, 17  pr. 


§  166.  Exemplo  patronorum 
Tecepk&e  (sunt  et  aliae  tutelae, 
quae  et  ipsae  legitimae  uo- 
cantur.  nam  si  quis  folium 
nepotemue  ex  filio  et  deinceps 
inpuberes,  autfiliam  neptemue 
ex  filio  et  deinceps  tarn  puberes 
quam  inpuberes  alteri  ea  lege 
mancipio  dederit,  ut  sibi  re- 
manciparentur,  remancipatos- 
que  manumiserit,  legit  imus 
eorum  tutor  erit.y 

Inst.  1,18. 

§  1 66  a.  [DE  FIDYCIABIA  TV- 
TELA."]  Sunt  et  aliae  tutelae, 
quae  fiduciariae  uocantur,  id 
est  quae  ideo  nobis  conpetunt, 
quia  liberum  caput  mancipatum 
nobis  uel  a  parente  uel  a  co- 
emptionatore  manumiserimus. 
Inst.  1, 19. 

§  167.  Sed  Latinarum  et 
Latinorum  inpuberum  tutela, 
non  omni  modo  ad  manumis- 
sores  eorum  pertinet,  sed  ad  eos 
quorum  ante  manumissionem 
(ex  iure  Quiritium  fuerunt ; 
unde  si  ancilla}  ex  iure  Quiri- 
tium tua  sit,  in  bonis  mea,  a 
me  quidem  solo,  non  etiam  a  te 
manumissa,  Latina  fieri  potest, 
et  bona  eius  ad  me  pertinent, 
sed  eius  tutela,  tibi  conpetit; 


interpretation  has  procured  for  it 
as  much  reception  as  it  would 
have  obtained  from  express  enact- 
ment ;  for  the  fact  that  the  statute 
gave  the  succession  of  a  freedman 
or  freedwoman,  when  they  die 
intestate,  to  the  patron  and  pa- 
tron's children,  was  deemed  by 
the  lawyers  of  the  republic  (ve- 
teres)  a  proof  that  it  intended  to 
give  them  the  guardianship  also, 
because  the  Tables,  when  they  call 
agnates  to  succeed  to  the  inheri- 
tance, likewise  confer  on  them 
the  guardianship. 

§  166.  The  analogy  of  the  pa- 
tron guardian  led  in  its  turn  to 
the  establishment  of  other  guar- 
dianships also  called  statutory. 
Thus  when  a  person  mancipates 
to  another,  on  condition  of  re- 
mancipation  to  himself,  either  a 
son  or  grandson  through  a  son, 
who  are  below  the  age  of  puberty, 
or  a  daughter  or  granddaughter 
through  a  son  of  whatever  age 
they  may  be,  he  becomes  their 
statutory  guardian  when  he  manu- 
mits them  after  remancipation. 

§  166  a.  CONCERNING  FIDUCIARY 
GUARDIANSHIP. 

But  there  are  other  kinds  of 
guardianship,  called  fiduciary, 
which  arise  when  a  free  person 
has  been  mancipated  by  his 
parent  or  coemptionator  to  an 
alienee  and  manumitted  by  the 
latter. 

§  167.  The  guardianship  of 
Latins,  male  or  female,  below  the 
age  of  puberty,  does  not  neces- 
sarily belong  to  their  manumitter, 
but  on  whoever  before  manumis- 
sion was  their  quiritary  owner. 
Accordingly,  a  female  slave  be- 
longing to  you  as  quiritary  owner, 
to  me  as  bonitary  owner,  if  manu- 
mitted by  me  without  your  join- 
ing in  the  manumission,  becomes 
a  Latin,  and  her  property  be- 
longs to  me,  but  her  guardianship 


i.  §§  1640-172.]      DE  CESSICIA  TVTELA 


103 


nam  ita  lege  lunia  cauetur; 
itaque  si  ab  eo,  cuius  et  in 
bonis  et  ex  iure  Quiritium 
ancilla  fuerit,  facta  sit  Latina, 
ad  eundem  et  bona  et  tutela 
pertinent. 


to  you,  by  the  enactment  of  the 
lex  Junia.  If  the  slave  is  made 
a  Latin  by  one  who  combines  the 
character  of  bonitary  and  quiri- 
tary  owner,  both  her  effects,  and 
the  guardianship  of  her,  belong  to 
one  and  the  same  person. 


DE   CESSICIA   TVTELA. 


§  168.  Agnatis  et  patronis 
et  liberorum  capitum  manu- 
missoribus  permissum  es^  femi- 
narum  tutelam  alii  in  jure 
cedere ;  pupillorum  autem  tute- 
lam non  est  permissum  cedere, 
quia  non  uidetur  onerosa,  cum 
tempore  pubertatis  finiatur. 


§  169.  Is  autem,  cui  ceditur 
tutela,  cessicius  tutor  uocatur. 

§  170.  Quo  mortuo  aut  capite 
deminuto  reuertitur  ad  eum 
tutorem  tutela  qui  cessit ;  ipse 
quoque  qui  cessit  si  mortuus 
aut  capite  deminutus  sit,  a  ces- 
sicio  tutela  discedit  et  reuerti- 
tur ad  eum,  qui  post  eum  qui 
cesserat  secundum  gradum  in 
ea  tutela  habueritf. 

§  171.  Sed  quantum  ad  agna- 
tos  pertinet,  nihil  hoc  tempore 
de  cessicia  tutela  quaeritur,  cum 
agnatorum  tutulae  in  feminis 
lege  Claudia  sublatae  sint. 

§  172.  Sed  fiduciaries  quo- 
que quidam  putauerunt  ceden- 
dae  tutelae  ius  non  habere,  cum 
ipsi  se  oneri  subiecerint.  quod 
etsi  placeat,  in  parente  tamen, 
qui  filiam  neptemue  aut  pro- 
neptem  alteri  ea  lege  mancipio 
dedit,  ut  sibi  remanciparetur, 
remancipatamque  manumisit, 


§  168.  Statutory  guardians, 
whether  agnates  or  patrons,  and 
manumitters  of  free  persons,  are 
permitted  to  transfer  the  guard- 
ianship of  a  female  ward  by 
surrender  before  a  magistrate ; 
the  guardianship  of  a  male  ward 
is  not  allowed  to  be  transferred, 
because  it  is  not  considered 
onerous,  being  terminated  by  the 
ward's  attaining  the  age  of  pu- 
berty. 

§  169.  The  surrenderee  of  a 
guardianship  is  called  a  cessionary 
guardian. 

§  170.  On  his  death  or  loss  of 
status  the  guardianship  reverts  to 
the  surrenderor,  and  on  the  sur- 
renderor's death  or  loss  of  status 
it  is  devested  from  the  cessionary 
and  reverts  to  the  person  entitled 
after  the  surrenderor. 


§  171.  As  far,  however,  as  ag- 
nates are  concerned,  in  the  pre- 
sent day  there  is  no  such  thing 
as  cessionary  guardianship,  for 
agnatic  guardianship  over  female 
wards  was  abolished  by  the  lex 
Claudia. 

§  172.  Fiduciary  guardians,  ac- 
cording to  some,  are  also  disabled 
from  transferring  their  guardian- 
ship, having  voluntarily  under- 
taken the  burden  ;  but  although 
this  is  the  better  opinion,  yet  a 
parent  who  has  mancipated  a 
daughter,  granddaughter,  or  great- 
granddaughter,  with  a  condition 


104  DE  PERSONIS  f[.  &&  173-184. 

1_  i    J 

idem  dici  non  debet,  cum  is  et  of  remancipation  to  himself,  and 
legitimus  tutor  habeatur,  et  manumitted  her  after  reman- 
non  minus  huic  quam  patronis  cipation,  should  be  excepted  from 
honor  praestandus  sit.  tne  rule>  for  he  is  ranked  with 

statutory  guardians,  and  has  the 
same  privilege  as  the  patron 
of  a  manumitted  slave. 

§  164  a.  As  in  default  of  agnates  the  inheritance  by  the  law  of  the 
Twelve  Tables  devolved  on  the  gens  it  may  be  inferred  .by  the 
reasoning  adopted  in  §  165  that  the  guardianship  passed  to  it  also. 
So  it  is  probable  that  at  the  beginning  of  the  lacuna  Gaius  made 
mention  of  the  statutory  guardianship  of  the  Gentiles,  and  that  this 
is  the  passage  on  the  subject  referred  to  in  3,  17.  As  to  the  nature 
of  the  gens,  see  Introduction. 

§  166  a.     Cf.  §§  115,  175,  195  a. 

§  167.  It  seems  anomalous  that  a  Latin,  i.e.  a  non*civis,  should 
have  been  a  subject  of  wardship  :  for  as  tutela  is  an  institute  of  jus 
civile  (§§  142,  comm*,  189),  i.e.  jus  civium,  we  should  have  expected 
that,  as  in  the  case  of  patria  potestas,  both  pater  and  filius  must  be 
cives  Romani,  §  128,  so  here  both  parties,  the  ward  as  well  as  the 
guardian,  must  of  necessity  be  cives  RomanL  The  anomaly,  how- 
ever, was  expressly  enacted  by  the  lex  Junia :  which  further  departed 
from  the  law  of  the  Twelve  Tables  by  separating  the  guardianship 
from  the  right  of  succession ;  for  it  gave  the  guardianship  to  the 
person  who  before  the  manumission  had  been  quiritary  owner,  but 
the  right  of  succession  to  the  person  who  had  previously  been 
bonitary  owner.  Latinus  was  not  only  capable  of  being  a  ward, 
but  also  of  being  a  guardian,  Fragmenta  Vaticana,  193;  that  is, 
though  he  was  incapable  of  being  a  testamentary  guardian,  §  23, 
he  could,  it  would  seem,  be  made  a  tutor  dativus,  that  is,  appointed 
by  a  magistrate,  §  185. 

§  168.  In  later  Eoman  law,  when  the  interest  of  the  ward  and  not 
that  of  the  agnates  was  principally  regarded, .  guardianship  became 
inalienable.  Similarly  in  English  jurisprudence  guardianship  is 
said  not  to  be  capable  of  assignment  or  transfer,  because  it  is  not 
a  right  but  a  duty. 

DE   PETENDO   ALIO   TVTORE. 

§  173.  Praeterea  senatus-  §  173.  Moreover,  a  decree  of 
consulto  mulieribus  permissum  the  senate  permits  female  wards 
est  in  absentia  tutoris  locum  to  demand  a  substitute  in  the 
alium  petere  ;  quo  petito  prior  Place  of  an  absent  guardian,  who 
desinit;  nee  interest  quam  longe  is  thus  superseded:  and  the  dis- 
absit  is  tutor  tance  of  his  residence  from  her 

domicil  [provided  it  amounts  to 
absence]  is  immaterial. 


I.  §§  173-184]     DE  PETENDO  ALIO  TVTORE 


105 


§  174.  Sed  excipitur,  ne  in 
absentis  patroni  locum  liceat 
libertae  tutorem  petere. 

§  175.  Patroni  autem  loco 
habemus  etiam  parentem,  qui 
ex  eo,  quod  ipse  sibi  .rewan- 
cipatara  filiam  neptemue  aut 
proneptera  manumiait,  legiti- 
mam  tutelam  nactus  est.  (serf) 
huius  quidem  liberi  fiduciarii 
tutoris  loco  numerantur;  pa- 
troni autem  liberi  eawdem 
tutelam  adipiscuntur,  quam  et 
pater  eorum  habuit. 

§  176.  Sed  aliquando  etiam 
in  patroni  absentis  locum  per- 
mittitur  tutorem  petere,  ueluti 
ad  hereditatem  adeundam. 


&  177.  Idem  senatus  censuit 

• 

et   in  persona  pupilli  patroni 
filii. 

§  178.  Nam  e£  lege  lulia  de 
maritandis  ordinibus  ei,  quae 
in  legitima  tutela  pupilli  sit$ 
permittitur  dotis  constituendae 
gratia  a  praetore  urbano  tuto- 
rem petere. 

§  179.  Sane  patroni  filius 
etiamsi  inpubes  sit,  libertae 
efficietur  tutor,  quamquam  in 
nulla  re  auctor  fieri  potest, 
cum  ipsi  nibil  permissum  sit 
sine  tutoris  auctoritate  agere. 

§  180.  Item  si  qua  in  tutela 
legitima  furiosi  aut  muti  sit, 
permittitur  ei  senatusconsulto 
dotis  constituendae  gratia  tuto- 
rem petere. 

§  181.  Quibus  casibus  sal- 
uam  manere  tutelam  patrono 
patronique  filio  manifestum  est. 


§  174.  But  an  exception  is 
made  in  favour  of  an  absent 
patron,  who  cannot  be  superseded 
on  the  application  of  a  freed- 
woman. 

§  175.  Eanked  with  patrons  is 
the  parent  who  by  mancipation, 
remancipation,  and  manumission 
of  a  daughter,  granddaughter,  or 
great-granddaughter,  has  become 
her  statutory  guardian.  His  sons 
only  rank  as  fiduciary  guardians, 
unlike  a  patron's  sons,  who  suc- 
ceed to  the  same  form  of  guardian- 
ship as  vested  in  their  father. 

§  1 76.  For  a  special  and  limited 
purpose  the  senate  permits  even 
the  place  of  a  patron  in  his  ab- 
sence to  be  filled  by  a  substitute  ; 
for  instance,  to  authorize  the 
acceptance  of  an  inheritance. 

§  177.  The  senatusconsult  gives 
similar  permission  when  a  pa- 
tron's son  is  himself  a  ward. 

§  178.  For  likewise  the  lex 
Julia,  regulating  the  marriages  of 
the  various  orders,  permitted  a 
woman  whose  statutory  guardian 
was  himself  a  ward  to  apply  to 
the  praetor  of  the  city  to  appoint 
a  guardian  for  the  purpose  of 
constituting  her  dower. 

§  1 79.  For  a  patron's  son  even 
before  the  age  of  puberty  is  a 
freedwoman's  guardian,  although 
unable  to  authorize  any  proceed- 
ing, being  himself  disabled  from 
acting  without  his  guardian's 
authorization. 

§  180.  Also  a  woman  whose 
statutory  guardian  is  a  lunatic  or 
dumb  is  permitted  by  the  senatus- 
consult, for  the  purpose  of  settling 
her  dower,  to  apply  for  a  substitu- 
tive  guardian. 

§  181.  In  which  cases  the  con- 
tinued guardianship  of  the  patron 
or  patron's  son  is  undisputed. 


106 


DE  PERSONIS 


[i.  §§  173-184. 


X 


§  182.  Praeterea  senatus 
censuit,  ut  si  tutor  pupilli 
pupillaeue  suspectus  a  tutela 
remotus  sit,  siue  ex  iusta  causa 
fuerit  excusatus,  in  locum  eius 
alius  tutor  detur,  quo  facto 
prior  tutor  amittit  tutelam. 


§  183.  Haec  omnia  similiter 
et  Romae  et  in  prouinciis  ob- 
seruantur,  scilicet  (ut  Romae 
a  praetorey  et  in  prouinciis  a 
praeside  prouinciae  tutor  peti 
debeat. 

§  184.  Olim  cum  legis  ac- 
tiones  in  usu  erant,  etiam  ex 
ilia  causa  tutor  dabatur,  si 
inter  tutorem  et  mulierem  pu- 
pillunme  lege  agendum  erat ; 
nam  quia  ipse  tutor  in  re  sua 
auctor  esse  non  poterat,  alius 
dabatur,  quo  auctore  legis 
actio  perageretur ;  qui  dice- 
batur  praetorius  tutor,  quia  a 
praetore  urbano  da&atur.  sed 
post  sublatas  legis  actiones 
quidam  putant  bane  speciem 
dandi  tutoris  in  usu  esse  de- 
siisse,  aliis  autem  placet  adtmq 
in  usu  esse,  si  legitimo  iudicio 
a^atur. 

Ulp.  11,  24;  Inst.  1,21,3. 


§  182.  The  senate  further  de- 
creed that  if  the  guardian  of  a 
male  or  female  ward  is  suspected 
of  misconduct  and  removed  from 
office,  or  if  he  alleges  valid  grounds 
for  declining  to  act  and  is  relieved 
of  his  functions,  a  substitute  shall 
be  appointed  by  the  magistrate, 
and  on  his  appointment  the  office 
of  the  former  guardian  shall  deter- 
mine, 

§  183.  These  rules  are  in  force 
both  in  Rome  and  in  the  pro- 
vinces, but  in  Rome  application 
foj*  the  appointment  of  a  tutor 
must  be  made  to  the  praetor  ;  in 
the  provinces,  to  the  governor  of 
the  province. 

§  184.  During  the  era  of  litiga- 
tion by  statute-process  [4  §  10], 
another  cause  of  appointing  a 
substitute  was  the  imminence  of 
statute-process  between  the  guar- 
dian and  the  woman  or  ward ; 
for  as  the  guardian  could  not  give 
his  authority  in  respect  of  his  own 
suit,  another  guardian  was  ap- 
pointed to  authorize  the  proceed- 
ings in  the  action,  who  was  called 
a  praetorian  guardian,  because  he 
was  appointed  by  the  praetor  of 
the  city.  But  some  hold  that 
since  the  abolition  of  statute-pro- 
cess this  mode  of  appointing  a 
guardian  ceased  to  be  used,  others 
maintain  that  it  is  still  the  prac- 
tice on  the  occasion  of  a  statutory 
suit  (4  §  103). 

name   ajid   date   of  this  senatus- 


§  173.    Of.  Ulp.    11,   22.     The 
consultum  cannot  be  ascertained. 

§  178.  Gaius,  as  already  stated,  wrote  a  special  treatise  or  com- 
mentary on  this  important  law  relating  to  marriage. 

§  1 79.  The  law  was  changed  by  Justinian,  who  enacted  that  no 
one  could  become  guardian  who  had  not  attained  his  majority, 
i.e.  completed  twenty-five  years  of  age,  Inst.  1,  25,  13  ;  Cod.  5,  30,  5. 
The  fact  of  not  having  attained  this  age  had  previously  been  ground 
of  excuse. 

§  182.  Cf.  Inst.  Just.  1,  26.  The  actio  suspecti  tutoris  for  the 
removal  of  the  guardian  from  his  office  could  be  maintained  by  any 


i.§§185-188.]  DE  ATILIANOTVTOREETIVLIOTITIANO  107 

person  in  the  interest  of  the  ward.  If  removed  on  account  of 
fraud  the  guardian  was  infamis,  but  not  so  if  it  was  simply  for 
negligence. 

§  183.  The  ambiguity  of  the  Latin  language  leaves  it  doubtful 
whether  in  the  foregoing  paragraphs,  §§  173,  176,  180,  182,  Gaius 
refers  to  one  or  several  senatusconsults.  From  Dig.  26,  1,  17,  how- 
ever, it  appears  that,  complura  senatusconsulta  facta  sunt  ut  in 
locum  furiosi  et  muti  et  surdi  tutoris  alii  tutores  dentur:  i.e.  the 
subject  often  occupied  the  attention  of  the  senate.  The  reason  was 
that  the  lex  Atilia,  presently  mentioned,  had  received,  after  the 
wont  of  the  ancient  jurists,  a  strictly  literal  interpretation,  and  was 
not  deemed  to  authorize  the  substitution  of  a  guardian  when  the 
existing  guardian  was  incapacitated. 


DE  ATILIANO  TVTOEE,  ET  EO  QYI  EX  LEGE  IVUA  ET  TITIA  DATVR. 


§  185.  Si  cui  nullus  omnino 
tutor  sit,  ei  datur  in  urbe 
Roma  ex  lege  Atilia  a  prae- 
tore  urbano  et  inaiore  parte 
tribunorum  plebis,  qui  Atilia- 
mis  tutor  uocatur ;  in  pro- 
uinciis  uero  a  praesidibus  pro- 
uinciarum  (ex}  lege  lulia  et 
Titia.  Inst.  1, 20  pr. 

§  186.  Et  ideo  si  cui  testa- 
mento  tutor  sub  condicione  aut 
ex  die  certo  datus  sit,  quamdiu 
condicio  aut  dies  pendet,  tutor 
dari  potest ;  item  si  pure  datus 
fuerit,  quamdiu  nemo  heres 
existat,  tamdiu  ex  his  legibus 
tutor  petendus  est ;  qui  desini£ 
tutor  esse,  posteaquam  aliquis 
ex  testamento  tutor  esse  coe- 
perit.  Inst.  1,  20, 1. 


§  187.  Ab  hostibus  quoque 
tutore  capto  ex  his  legibus 
tutor  peti  debet;  qui  desinit 
tutor  esse,  si  is  qui  captus  est 
in  ciuitatem  reuersus  fuerit : 


§  185.  Failing  every  other  form 
of  g^rdian,  at  Rome  a  guardian 
is  appointed  under  the  lex  Atilia 
by  the  praetor  of  the  city  and  the 
major  part  of  the  tribunes  of  the 
people,  called  an  Atilian  guardian: 
in  the  provinces,  a  guardian  is 
appointed  by  the  president  of  the 
province  under  the  lex  Julia  and 
Titia. 

§  186.  Accordingly,  on  the  ap- 
pointment of  a  testamentary  guar- 
dian subject  to  a  condition,  or  on 
an  appointment  which  is  not  to 
commence  till  after  a  certain  time, 
during  the  pendency  of  the  con- 
dition and  before  the  time  has 
come,  a  substitute  is  appointed 
by  these  magistrates  ;  also,  when 
the  appointment  of  a  testamentary 
guardian  is  not  subject  to  a  con- 
dition, so  long  as  no  heir  has 
entered  under  the  will,  a  tempo- 
rary guardian  may  be  obtained 
under  those  statutes,  whose  office 
will  determine  as  soon  as  the 
guardian  becomes  entitled  under 
the  will. 

§  1 87.  On  the  hostile  capture  of 
a  guardian  the  same  statutes  regu- 
late the  appointment  of  a  substi- 
tute to  continue  in  office  until  the 
return  of  the  captive  ;  for  if  the 


108 


DE  PERSONIS 


[i.  §§  189-193. 


nam   reuersus   recipit  tutelam 
iure  postliminii.     Inst.  1,  20,  2. 

§  188.  Ex  his  apparet,  quot 
sint  species  £utelarum.  si  uero 
quaeramus  in  quot  genera  hae 
species  d^ducantur,  longa  erit 
disputatio ;  nam  de  ea  re  ualde 
ueteres  dubitauerunt,  nosque 
diligentius  hunc  tractatum 
executi  sumus  et  in  edicti 
interpretatione  et  in  his  libris 
quos  ex  Q.  Mucio  fechnus.  hoc 
£antisper  sufficit  admonuisse, 
quod  quidam  quinque  genera 
esse  dixerunt,  ut  Q.  Mucius ; 
alii  tria,  ut  Ser.  Sulpicius  ;  alii 
duo,  ut  Labeo ;  alii  tot  genera 
esse  crediderunt,  quot  etiam 
species  essent. 


captive  returns  he  recovers  the 
guardianship  in  virtue  of  his  re- 
habilitation. 

§  188.  The  foregoing  statement 
shows  the  various  forms  of  guar- 
dian :  the  question  of  the  number 
of  orders  to  which  these  forms 
may  be  reduced  involves  a  long 
discussion,  for  it  is  a  point  on 
which  the  ancient  jurists  differed 
greatly  ;  and  as  I  have  examined 
it  at  length,  both  in  my  interpre- 
tation of  the  edict  and  in  my 
commentary  on  Quintus  Mucius, 
for  the  present  occasion  it  may 
suffice  to  observe  that  some,  as 
Quintus  Mucius,  make  five  orders ; 
others,  as  Servius  Sulpicius,  three ; 
others,  as  Labeo,  two ;  others  make 
as  many  orders  as  there  are  forms 
of  guardian. 


§  188.  In  the  time  of  Justinian  there  were  three  forms  of  guardian, 
— testamentary,  or  appointed  by  will ;  statutory,  or  prescribed  by 
the  law  in  case  of  intestacy ;  and  magisterial  (dativus),  or  appointed 
by  the  magistrate,  in  default  of  a  testamentary  or  statutory  guardian. 
The  other  forms  of  guardian  had  become  obsolete,  except  a  kind  of 
fiduciary  one,  Inst.  1 ,  1 9,  in  consequence  of  the  change  in  legislation. 

For  an  account  of  Q.  Mucius  Scaevola  (Consul  B.C.  95)  and 
Servius  Sulpicius  Kufus  (Consul  B.C.  51),  who  maybe  regarded  as 
the  fathers  of  Roman  jurisprudence,  see  Roby,  Intr.  to  Justinian's 
Digest,  pp.  cvi  and  cxi. 


DE   MVLIERVM   TVTELA. 


§189.  Sed  inpuberes  quidem 
in  tutela  esse  omnium  ciuita- 
tium  iure  contingit,  quia  id 
naturali  rations  conueniens  est, 
ut  is  qui  perfectae  aetatis  non 
sit,  alterius  tutela  regatur.  nee 
fere  ulla  ciuitas  est,  in  qua  non 
licet  parentibus  liberis  suis  in- 
puberibus  testamento  tutorem 
dare ;  quamuis,  ut  supra  dixi- 
mus,  soli  ciues  Romani  uidean- 
tur  liberos  suos  in  potestate 
habere.  Inst.  1,20,  6. 


§  189.  The  wardship  of  children 
under  the  age  of  puberty  is  part 
of  the  law  of  every  state,  for  it 
is  a  dictate  of  natural  reason  that 
persons  of  immature  years  should 
be  under  the  guardianship  of 
another,  in  fact  there  is  scarcely 
any  state  which  does  not  permit  a 
parent  to  nominate  a  testamentary 
guardian  for  his  children  under 
the  age  of  puberty,  though,  as  we 
have  before  stated,  only  citizens 
of  Rome  appear  to  be  invested 
with  parental  power. 


i.  §§  189-193.]        DE  MVLIERVM  TVTELA 


109 


§  190.  Feminas  uero  perfe- 
ctae  aetatis  in  tutela  esse  fere 
nulla  pretiosa  ratio  suasisse 
uidetur  ;  nam  quae  uulgo  credi- 
tur,  quia  leuitate  animi  plerum- 
que  deeipiuntitr  et  aequum 
erat  eas  tutorum  auctoritate 
regi,  magis  speciosa  uidetur 
quara  uera ;  mulieres  enim, 
quae  perfectae  aetatis  sunt, 
ipsae  sibi  negotia  tractant  et  in 
quibusdam  causis  dicis  gratia 
tutor  interponit  Auctoritatem 
suam,8aepeetiam  inuitus  auctor 
fieri  a  praetore  cogitur. 

§  191.  Unde  cum  tutore 
nullum  ex  tutela  iudicium  mu- 
lieri  datur ;  at  ubi  pupillorum 
pupillarumue  negotia  tutores 
tractant,  ei  post  pubertatem 
tutelae  iudicio  rationem  red- 
dunt. 


§  192.  Sane  patronorum  et 
parentum  legitimae  tutelae  uim 
aliquam  habere  intelleguntur 
eo,  quod  hi  neque  ad  testamen- 
tum  faciendum  neque  ad  res 
mancipi  alienandas  neque  ad 
obligationes  suscipiendas  au- 
ctores  fieri  coguntur,  praeter- 
quam  si  magna  causa  alienan- 
darum  rerum  mancipi  obliga- 
tionisque  suscipiendae  inter- 
ueniat ;  eaque  omnia  ipsorum 
causa  constituta  sunt,  ut,  quia 
ad  eos  intestfatarum  mortuarum 
hereditates  pertinent,  neque  per 
testamentum  excludantur  ab 
hereditate  neque  alienatis  pr<?- 
tiosioribus  rebus  susceptoque 
acre  alieno  minus  locuples  ad 
eos  hereditas  perneni&t. 

§  193.  Apud  peregrines  non 
similiter  ut  apud  nos  in  tutela 
aunt  feminae;  sed  tamen  ple- 


§  1 90.  But  why  women  of  full 
age  should  continue  in  wardship 
there  appears  to  be  no  valid  reason ; 
for  the  common  allegation,  that  on 
account  of  levity  of  dispositi  on  they 
are  readily  deceived,  and  that  it 
is  therefore  right  that  they  should 
be  controlled  by  the  sanctionary 
power  of  a  guardian,  seems  rather 
specious  than  true,  for  women  of 
full  age  administer  their  own  pro- 
perty, and  it  is  a  mere  formality 
that  in  some  transactions  their 
guardian  interposes  his  sanction  ; 
and  in  these  cases  he  is  frequently 
compelled  against  his  own  will 
to  give  his  sanction. 

§  191.  Accordingly,  a  woman 
has  not  the  tutelary  action  against 
her  guardian  ;  whereas  since  the 
guardians  of  youthful  wards,  both 
male  and  female,  administer  their 
wards'  property,  they  are  liable 
to  be  sued  on  account  of  such  ad- 
ministration when  the  ward  has 
come  to  the  age  of  puberty. 

§  192.  The  statutory  guardian- 
ship of  patrons  and  parents  is  not 
purely  ineffective,  as  they  cannot 
be  compelled  to  give  their  sanction 
to  a  will  or  to  the  alienation  of 
mancipable  property,  or  to  the 
undertaking  of  obligations,  unless 
there  are  very  weighty  reasons  for 
the  obligation  or  the  alienation  ; 
but  this  rule  is  in  their  own 
interest  as  heirs  of  intestacy,  and 
is  designed  to  prevent  their  loss 
of  the  estate  by  testamentary 
disposition,  or  the  diminution  of 
its  value  by  debt  or  by  alienation 
of  a  considerable  portion. 


§193.  In  other  countries,  though 
not  under  the  same  tutelage  as 
at  Eome,  women  are  generally 


110  DE  PERSONIS  [i.  §§  189-193. 

rumque  quasi  in  tutela  sunt ;  subject  to  a  quasi  tutelage :  for 

ut  ecce  lex  Bithynorum,  si  quid  instance,    the    law   of    Bithynia 

mulier  contrah&t,  maritum  au-  requires  the  contract  of  a  woman 

ctorem   esse   iubet   aut   filium  *°  be  sanctioned  by  her  husband 

eius  puberem.  or  bJ  a  son  above  tne  aSe  of 

puberty. 

As  women  were  capable  of  administration,  the  functions  of  the 
guardian,  which  in  the  case  of  infants  were  either  administrative 
or  sanctionative,  in  the  case  of  women  were  confined  to  sanctioning. 
Pupillorum  pupillarumque  tutores  et  negotia  gerunt  et  auctoritatem 
interponunt :  mulierum  autem  tutores  auctoritatem  dumtaxat  inter- 
ponunt,  Ulp.  11,  25.  It  is  transparent  that  the  wardship  of  women 
after  full  age  was  not  designed  to  protect  their  own  interests,  but 
those  of  their  heirs  apparent,  their  agnates.  Originally  the  autho- 
rization of  the  guardian  was  not  sufficient  to  validate  the  will  of  an 
independent  woman :  it  was  necessary  that  she  should  first  break 
the  ties  of  agnation,  and  separate  from  her  family  by  means  of  a 
coemption  (with  her  guardian's  sanction)  and  subsequent  reman- 
cipation  and  manumission.  She  then,  with  the  sanction  of  the 
manumissor,  in  his  character  of  fiduciary  guardian,  could  make 
a  valid  will.  In  the  time  of  Gaius,  Hadrian  having  abolished 
the  necessity  of  coemption,  to  make  a  valid  will  an  independent 
woman  only  required  the  sanction  of  her  guardian,  2  §  112,  and 
Claudius,  as  we  have  seen,  had  put  an  end  to  agnatic  guardianship, 
§  171. 

When  a  woman  was  liberated  from  the  administrative  control  of 
her  guardian,  and  the  guardian  had  no  longer  any  interest  in  the 
succession  to  her  property,  the  simplest  course  would  have  been  to 
declare  her  dispositions  valid  without  his  sanction — to  declare  her 
no  longer  a  ward.  But  with  characteristic  conservatism  of  forms, 
Roman  law,  to  avoid  the  open  change,  declared  the  auctoritas  still 
necessary,  but  made  it  compulsory  instead  of  voluntary — gave  the 
ward  a  power  of  extorting  it  from  the  guardian,  2  §§  80-85.  So 
the  act  whereby  a  testamentary  heir  accepts  an  inheritance  was 
originally  absolutely  voluntary :  but  when  trusts  (fidei  commissa) 
were  introduced,  and  the  heir  as  trustee  or  fiduciarius  by  ground- 
lessly  refusing  to  make  the  necessary  aditio,  which  in  this  case  was 
the  merest  form,  could  produce  intestacy,  and  thus  deprive  the 
beneficiary,  fidecommissarius,  or  cestui  que  trust  of  the  provision 
destined  for  him  by  the  bounty  of  the  testator  :  instead  of  declaring 
the  aditio  of  the  heres  unnecessary  to  the  acquisition  of  the  fortune 
by  fideicommissarius ;  or  that  in  such  a  case  the  beneficiary  should 
be  deemed  to  be  a  direct  substitutus  of  the  heres  ;  or  that  the 
vexatious  refusal  of  the  heres  should  be  deemed  to  be  an  aditio  and 


I.  §§  189-193.]        DE  MVLIERVM  TVTELA  111 

restitutio  ;  the  legislator  ordained  that  the  heres  should  be  com- 
pelled to  make  aditio  in  order  to  complete  the  title,  2  §  258,  comm. 
Again,  the  terms  of  the  security  given  by  the  guardian  (rem  pupilli 
salvam  fore)  against  dilapidation  of  the  estate  of  the  ward  made  the 
responsibility  of  the  guardian  depend  on  his  actual  administration ; 
so  that  he  was  not  responsible  if  the  estate  went  to  ruin  in  con- 
sequence of  his  total  abstention  from  the  performance  of  his  duties. 
To  protect  the  ward  against  this  contingency,  instead  of  altering  the 
formula  of  the  satisdatio,  and  making  the  liability  of  the  guardian 
depend  on  his  appointment  and  not  on  his  acting ;  the  law  com- 
pelled him  to  proceed  to  some  act  of  guardianship,  in  order  to  bring 
him  under  the  unchanged  terms  of  his  security ;  Dig.  46,  6,  4,  3. 
In  all  these  and  other  cases  a  compulsory  act  was  substituted  for 
a  voluntary  act  for  the  sake  of  giving  the  law  an  outward  appearance 
of  continuity.  At  last,  at  some  period  before  the  epoch  of  Justinian, 
the  tutelage  of  women  above  the  age  of  puberty  had  ceased  in  form 
as  well  as  in  substance,  and  no  sanction  of  a  guardian,  whether 
voluntary  or  compulsory,  was  required. 

It  is  to  be  observed,  that  as  women  were  gradually  enfranchised 
from  their  disabilities,  they  also  forfeited  some  of  their  original 
privileges.  It  was  a  rule  of  the  administration  of  justice  that 
while  error  of  fact  might  be  pleaded  to  defend  a  person  against  the 
consequences  of  his  own  acts  or  omissions,  no  one  should  be  allowed 
to  allege  an  error  of  law,  Dig.  22,  6,  9  pr.  An  exception  however 
was  made  in  favour  of  minors,  of  soldiers,  of  the  utterly  uneducated 
(rustici),  and  of  women.  Against  their  ignorance  of  rules  of  law, 
particularly  those  rules  of  jus  civile  which  are  not,  like  rules  of 
jus  gentium  or  natural e,  the  almost  self-evident  dictates  of  reason 
and  common  sense,  they  were  relieved  by  a  branch  of  the  praetor's 
extraordinary  jurisdiction,  called  in  integrum  restitutio,  a  power  of 
cancellation  and  rescission,  in  cases  of  manifest,  collision  between 
law  and  equity ;  §§  197-200,  comm.  This  privilege  of  women 
was  partially  abrogated  by  a  constitution  of  the  Emperor  Leo, 
A. D.  472;  Cod.  1,  18,  13.  'To  prevent  the  indiscriminate  revo- 
cation by  women  of  all  their  contracts  on  the  ground  of  omission 
of  error,  be  it  enacted,  that  ignorance  of  law,  whereby  a  woman 
is  damnified  in  her  right  or  property,  shall  only  be  a  title  to 
relief  in  those  cases  where  previous  statutes  have  sanctioned  such 
relief.' 

From  §  189  it  might  appear  that  Gaius  referred  the  institution 
of  guardianship  to  the  code  of  jus  gentium.  We  have,  however, 
quoted  from  the  Institutes,  §§  142,  154,  comm.,  a  passage  which 
ascribes  it  to  jus  civile :  and,  indeed,  no  institution  confined  in  its 
operation  almost  entirely  to  cives,  can  be  supposed  to  belong  to 


112  DE  PEESONIS  [t.  §§  194-196. 

ju's  gentium  or  natural  law.  Moreover,  the  law  of  guardianship 
has  been  most  variable,  not  only  if  we  look  to  different  countries, 
but  also  if  we  look  at  different  periods  in  the  same  country ; 
and  the  praetor  or  chancellor  or  other  authority  that  has  had  the 
supervision  of  guardians  has  always  exercised  a  great  latitude  of 
discretion ;  features  which  again  forbid  us  to  ascribe  the  rules  of 
wardship  to  any  comparatively  immutable  code  of  nature.  Tutela 
was  in  fact  an  old  Roman  institution,  by  which  the  gens  or  familia 
maintained  control  in  its  own  interest  over  its  weaker  members, 
who  were  not  subject  to  patria  potestas.  It  is  possible  that  this 
control  was  at  first  exclusively  exercised  by  the  gens,  in  whom  the 
ownership  of  all  land  occupied  by  the  gentiles  may  have  been  vested, 
and  that  agnatic  as  well  as  testamentary  guardianship  was  first 
instituted  by  the  law  of  the  Twelve  Tables,  whereby  patricians  and 
plebeians  were  put  on  an  equality  in  respect  of  private  rights.  That 
the  gens  was  in  the  habit  of  taking  charge  in  some  way  of  lunatics 
and  insane  persons  we  know  from  the  words  of  the  Twelve  Tables, 
which  have  come  down  to  us — 'Si  furiogus  exit,  ast  ei  custos  ne 
exit,  adgnatum  gentiliumque  in  eo  pecuniaque  eius  potestas  est.' 
Cf.  Muirhead,  Eoman  Law,  §§  26,  28, 

QVIBVS   MODIS   TYTELA   FINIATVK. 

§194.  Tutela  autem  libe-  §  194.  Guardianship  is  termin- 

rantur  ingenuae  quidem  trium  ated  for  a  freeborn  woman  by  title 

(liberorum  iure  libertinae  of  being  mother  of  three  children, 

uero  quattuor,  si  in  patroni}  for  a  freedwoman  if  under  statu- 

liberorumue  eius  legitima  tu-  toiT  guardianship  of  her  patron 

tela  sint;  nam  ceterae  quae  or  his  children  by  being  mother 

alterius  generis  tutores  habent,  °J.fol"  ph^n:  those  who  have 

r  i  j.  A  A-T  ±  £j  •  •  i  other  kinds  oi  guardians,  Atihan 

[uelut  Atilianos  aut  fiduciaries  ]  or  fid  for  instance/are  libe- 

trmm  liberorum  rare  tutela  rated  from>  wardship  by  being 

liberantur.  mothers  of  three  children. 

§  195.  Pofest  autem  pluri-  §  !95-  There  are  various  ways 

bus  modis  libertina  alterius  by  which  a  freedwoman  may  have 

generis  (tutorem}  habere,  ue-  other  kin_ds  of  g^rdians :  for 

luti  si  a  femina  manumissa  sit ;  m?ta.nce  _ m   case   of  ^\  man.u- 

i         A4-T      ,-v  4-  *  mission  by  a  woman,  when  she 
tune  enim  e  Leqe  Atilia  petere  J  ,  ,.  '        ,     ,, 

,  ,    ,  must  request  a  guardian  under  the 

debet    tutorem     uel     m    pro-  ^  M^         ^  the      ovin 

umc<m  e  lege  J«Z)ia  et  Titia  ;  under  the  lex  Julia  and  Titia> 

nam   in    patronae    tutela  esse  gince  a  female  patron  cannot  be 

non  potest.  her  guardian. 

§  195  a.     Item  si  <a>  mas-  §  195  a.  Also  on  manumission 

culo    manumissa    {fuerit}    et  by  a  male,  if  with  his  sanction 

auctore  eo  coemptionem  fecerit,  she  makes  a  coemption,  and  then 

deinde  remancipata  et  manu-  is  remancipated  and  manumitted, 


I.  §§  194-196.]   QVIBVS  MODIS  TVTELA  FINIATVR       113 


missa  sit,  patronum  quidem 
habere  tutorein  desinit,  incipit 
autem  habere  eum  tutorem  a 
quo  manumissa  est,  qui  fidu- 
ciarius  dicitur. 

§  195  6.  Item  si  patronus 
eiusue  filius  in  adoptionem  se 
dedit,  debet  liberta  e  lege  Atilia 
ud  lulia  et  Titia  tutorem  pe- 
tere. 

§  195  c.  Similiter  ex  isdem 
legibus  petere  debet  tutorem 
libert&,  si  patronus  decesserit 
nee  ullum  uirilis  sexus  libero- 
rum  in  familia  reliquerii. 

§  196.  Masculi  autem  cum 
puberes  esse  coepermt,  tutela 
liberantur.  puberem  autem 
Sabinus  quidem  et  Cassius  ce- 
terique  nostri  praeceptores  eum 
esse  putan£,  qui  habitu  corporis 
pubertatem  ostendit,  id  est  eum 
qui  generare  potest ;  sed  in  his 
qui  pubescere  non  possunt, 
quales  sunt  spadones,  earn 
aetatem  esse  spectandam,  cuius 
aetatis  puberes  fiunt ;  sed  di- 
uersae  scholae  auctores  annis 
putant  pubertatem  aestiman- 
dam,  id  est  eum  puberem  esse 
existimant  qui  xini  annos  ex- 
pleuit. 1  Inst.  1, 22  pr. 


for  the  patron  then  ceases  to  be 
guardian,  and  is  replaced  by  the 
second  manumitter,  who  is  called 
a  fiduciary  guardian. 

§  1956.  Also  on  the  adrogation 
of  her  patron  or  his  son  she  must 
demand  a  guardian  under  the  lex 
Atilia  or  Titia. 

§  195  c.  Similarly  in  compli- 
ance with  the  same  laws  she  must 
demand  a  guardian  on  the  decease 
of  her  patron  without  leaving  any 
male  descendant  in  the  family. 

§  196.  For  males  the  attain- 
ment of  the  age  of  puberty  is  a 
release  from  wardship.  Puberty, 
according  to  Sabinus  and  Cassius 
and  the  other  authorities  of  my 
school,  depends  on  physical  de- 
velopment, that  is,  on  capacity  of 
generation ;  or  in  case  of  im- 
potence, eunuchs  for  instance,  on 
the  completion  of  the  age  which 
usually  implies  capacity  of  gene- 
ration. The  other  school  hold 
that  puberty  is  to  be  exclusively 
measured  by  age,  that  is  to  say, 
that  it  should  always  be  deemed 
to  be  attained  on  the  completion 
by  a  male  of  his  fourteenth  year. 


§  196.  All  jurists  agreed  that  in  the  case  of  impotence,  whether 
natural  or  acquired,  some  fixed  date  must  be  assumed  as  the  conven- 
tional period  of  puberty.  The  Sabinian  rule  appears  to  be  preserved 
in  a  passage  of  Paulus :  Spadones  eo  tempore  testamentum  facere  pos- 
sunt quo  plerique  pubescunt,  id  est,  anno  decimo  octavo,  3,  4  a,  2. 
Fourteen  was  assumed  to  be  the  average  age  of  puberty ;  but  it 
was  too  early,  even  in  the  southern  climes  subject  to  Eoman  legis- 
lation, for  a  minority  of  constitutions  which  advance  more  slowly 
to  maturity.  Eighteen  was  supposed  to  be  sufficiently  postponed 
to  include  most  of  these  cases  of  retarded  development.  We  have 
already,  in  treating  of  adrogation,  §  106,  commentary,  met  with 
the  phrase,  plena  pubertas,  denoting  eighteen  years  of  age. 


114 


DE  PEKSONIS 


[i.  §§  197-200. 


DE   CVKATORIBVS. 


(25  uersus  in  C  legi  nequeunt) 

§  197.   aetatem   per- 

uenerit,  in  qua  res  suas  tueri 
possit ;  sicut  apud  peregrinas 
gentes  custodiri  superius  in- 
dicauimus.  Inst.  1,  2,  3. 

§  198.  Ex  isdem  causis  et 
in  prouinciis  a  praesidibus 
earum  curatores  dari  solent. 

Inst.  1.  c. 


§  197.  After  release  from  tute- 
lary guardianship  the  estate  of  a 
minor  is  managed  by  a  curator 
Until  he  reaches  the  age  at  which 
he  is  competent  to  attend  to  his 
own  affairs,  and  the  same  rule 
obtains  in  other  nations,  as  we 
have  already  mentioned. 

§  198.  Under  similar  circum- 
stances the  president  of  a  province 
appoints  a  curator. 


DE   SATISDATIONE   TVTOKVM   VEL   CVRATORVM. 


§  199.  Ne  tarn  en  et  pupil- 
lorum  et  eorum  qui  in  curatione 
sunt  negotia  a  tutoribus  cura- 
toribusque  consumantur  aut 
deininuantur,  curat  praetor,  ut 
et  tu tores  ~(ety  curatores  eo 
nomine  satisdent. 

Inst.  1,24  pr. 

§  200.  Sed  hoc  non  est  per- 
petuum ;  nam  et  tutores  testa- 
vnento  dati  satisdare  non  co- 
guntur,  quia  fides  eorum  et 
diligentia  ab  ipso  testatore  pro- 
bata  est ;  et  curatores,  ad  quos 
no%  e  lege  curatio  pertinet, 
sed  (qui)  uel  a  consule  uel  a 
praeside  prouinciae  dantnr, 
plerumque  non  coguntur  satis- 
dare,  scilicet  quia  satis  honesti 
electi  sunt.  Inst.  1.  c. 


§  1 99.  To  protect  tutelary  wards 
and  those  having  a  curator  from 
the  destruction  or  waste  of  their 
property  by  their  guardians  and 
curators,  it  is  the  function  of  the 
praetor  to  require  such  guardians 
and  curators  to  give  security  for 
due  administration. 

§  200.  But  this  is  not  without 
exception,  for  testamentary  guar- 
dians are  not  compelled  to  give 
security,  as  their  integrity  and 
vigilance  have  been  approved  by 
the  testator  ;  and  curators  who 
have  not  been  appointed  by  any 
statute,  but  by  the  nomination  of 
a  consul  or  praetor  or  president 
of  a  province,  are  generally  not 
required  to  give  security,  their 
selection  being  deemed  sufficient 
evidence  of  their  trustworthiness. 


§  197.  In  English  jurisprudence  there  is  no  distinction  corre- 
sponding to  that  between  tutor  and  curator,  impubes  (pupillus)  and 
minor  (adolescens).  Infant  and  minor  are  in  English  synonymous  ; 
guardianship  continues  to  the  attainment  of  majority,  i.e.  to  the 
completion  of  twenty-one  years  of  age ;  and  after  that  the  young  of 
both  sexes  are  considered  to  be  capable  of  taking  care  of  themselves, 
and  are  free  from  further  control.  At  Eome  wardship  (tutela)  ceased 
at  puberty,  or,  as  the  law  came  to  be  denned,  at  the  age  of  fourteen 


I.  §§197-200.]  DE  CVRATORIBVS  115 

for  males  and  twelve  for  females,  ages  at  which  the  young  manifestly 
continue  to  stand  in  need  of  guidance  and  protection,  though 
according  to  Eoman  law  they  were  then  fully  competent  to  administer 
their  own  property,  and  to  dispose  of  it  by  will. 

Such  protection  was  provided  for  them  partly  by  two  statutes, 
partly  by  praetorian  legislation,  (i)  The  lex  Plaetoria,  or  Laetoria, 
was  as  old  as  Plautus,  who  about  186  B.C.  makes  a  youth  exclaim: 
Lex  me  perdit  quinavicenaria  ;  metuunt  credere  omnes,  Pseudolus, 
303.  'The  statute  with  its  five  and  twenty  years  prevents  my 
getting  credit.'  It  made  a  criminal  offence,  and  subject  to  a  criminal 
prosecution  (judicium  publicum,  Cic.  de  Nat.  Deor.  3,  30),  what 
Cicero  calls  circumscriptio  adolescentium,  De  Off.  3,  1 5  ;  i.  e.  over- 
reaching and  circumventing  persons  below  the  age  of  twenty-five. 
Such  is  Savigny's  interpretation  of  judicium  publicum,  Vermischte 
Schriften,  18.  Ihering  maintains  that  judicium  publicum  denotes 
in  this  passage  not  a  criminal  prosecution  but  an  actio  popularis ; 
i.e.  a  civil  action  that  could  be  instituted  not  only  by  the  Minor  but 
by  a  common  Informer:  and  he  quotes  Dig.  26,  10,  1,  6  (cf.  Inst. 
1,  26,  3)  Consequens  est  ut  videamus  qui  possunt  suspectos  (tutores) 
postulare,  et  sciendum  est  quasi  publicam  esse  hanc  actionem,  hoc  est. 
omnibus  patere.  Dig.  12,  2,  30,  3,  where  quasi  publica  actio  means  an 
action  similar  to  actio  popularis,  Geist  des  Komischen  Kechts,  §  52, 
nn.  158,  159.  The  circumscription  of  a  minor,  like  fraudulent  mal- 
administration by  a  guardian,  rendered  the  person  convicted  thereof 
infamis.  A  contractor  with  a  minor  might  secure  himself  against 
the  penalties  of  the  law,  if  a  curator  were  nominated  by  the  praetor 
to  advise  the  minor  in  respect  of  the  special  transaction. 

(2)  As  the  lex  Plaetoria  was  only  applicable   in   cases  of  fraud 
(dolus  malus,  Cic.  de  Off.  3,  15),  the  protection  it  gave  to  minors 
was  inadequate :  accordingly,  the  praetor,  besides  allowing  a  minor 
to  set  up  the  plea  of  minority  when  sued  in  an  action,  proclaimed 
in  his  edict  that  he  would  relieve  minors  who  had  been  damaged 
in  consequence  of  inexperience  and  improvidence  by  rescission  and 
cancellation  of  the  proceeding   (in  integrum  restitutio).     To  obtain 
this  relief  it  was  not  necessary  to  prove  any  fraud  on  the  part  of 
the  person  who  contracted  with  the  minor. 

(3)  A  person  who  wished  to  bring  an   action  against   a   minor 
could  compel  him  to   obtain   from   the   praetor  a   curator  for  the 
purpose  of  defending  the  particular  suit ;    whose   office   ceased   as 
soon  as  the  special  litigation  terminated.     Marcus  Aurelius,  under 
whom  Gaius  flourished,  enacted  that  any  minor  who  chose  should 
be   able   to  obtain  from  the   praetor   a   general   curator  (generalis 
curator),  who  then  should  be  charged   with  the  general   adminis- 
tration (generalis  administratio)  of  his  estate,  Capitolinus,  10.     In 

I  2 


116  DE  PERSONIS  [r.  §§  197-200. 

view  of  this  option  of  the  minor,  Justinian  could  still  say:  Inviti 
adolescentes  curatores  non  accipiunt  praeterquam  ad  liteni,  Inst. 
1,  23,  2.  'Unless  they  choose,  minors  need  not  have  a  curator, 
except  for  a  suit.'  A  minor  who  had  a  curator  could  not  aliene 
without  the  consent  of  his  curator:  he  could  incur  an  obligation 
without  the  consent  of  his  curator,  subject  to  his  right  of  in 
integrum  restitutio,  though,  unless  he  had  a  curator,  persons  would 
not  be  very  willing  to  contract  with  him.  Even  the  existence  of 
a  curator  did  not  deprive  the  minor  of  his  right  of  restitution,  but 
of  course  it  could  not  be  obtained  so  readily  as  when  he  acted 
without  the  advice  of  a  curator.  The  praetor  allowed  actiones 
utiles  against  a  curator,  corresponding  to  those  to  which  a  tutor 
was  subject. 

The  tutor  and  curator  were  entirely  separate  functionaries :  when 
women  were  under  perpetual  tutelage,  a  woman  might  have  both 
a  tutor  and  a  curator.  The  curator  of  a  minor  must  be  dis- 
tinguished from  an  agent  (procurator),  a  person  invested  with 
certain  rights  and  duties,  which  will  be  explained  when  we  examine 
the  different  kinds  of  contract.  An  agent  is  governed  by  the  in- 
structions (mandatum)  of  his  principal :  a  minor  is  under  the  direc- 
tion of  his  curator :  the  employment  of  an  agent  is  a  private  matter, 
purely  voluntary  on  the  part  of  the  principal ;  the  curator,  like  the 
tutor,  holds  a  public  function,  and  having  one  is  in  some  cases 
involuntary  on  the  part  of  the  minor. 

How  exactly  the  lacuna  in  §  197  should  be  filled  up  is  doubtful. 
We  do  not  know  what  is  the  previous  passage  referred  to. 

Besides  minors,  lunatics  and  prodigals  of  whatever  age  were 
committed  to  the  charge  of  curators.  The  cura  of  lunatics  and 
prodigals  is,  indeed,  older  than  that  of  minors,  being  regulated  by 
the  Twelve  Tables,  which  directed  that  the  nearest  agnate  should 
be  curator  of  a  lunatic,  and  manage  the  estate  of  an  interdicted 
prodigal.  In  later  times  it  was  usual  for  the  praetor  or  praeses  pro- 
vinciae  to  appoint  a  curator  after  inquest  (ex  inquisitione).  Paulus 
has  preserved  the  form  of  words  in  which  the  prodigal  was  inter- 
dicted :  3,  4  a,  7.  '  By  custom  the  praetor  interdicts  a  prodigal 
from  the  administration  of  his  property  in  the  following  terms :  As 
thy  profligacy  is  wasting  the  estate  of  thy  father  and  ancestors, 
and  bringing  thy  children  to  destitution,  I  therefore  interdict  thee 
from  the  control  of  thy  patrimony,  and  from  all  disposition  of 
property.' 

In  integrum  restitutio,  a  branch  of  the  praetor's  equitable  juris- 
diction, and  one  of  the  most  remarkable  cases  of  his  cognitio  extra- 
ordinaria,  has  been  mentioned  more  than  once,  and  deserves  here 
a  brief  explanation.  Kestituere  in  a  general  sense  denotes  any 


I.  §§  197-200.]     IN  INTEGRVM  RESTITVTIO  117 

undoing  of  a  wrong,  any  replacement  of  a  person  or  his  right  in 
his  or  its  original  condition,  whether  by  the  voluntary  act  of  the 
wrongdoer,  or  after  action  brought,  and  then  either  at  the  invitation 
of  the  judge  (in  virtue  of  the  clause,  ni  restituat,  4  §  47),  or  in 
execution  of  a  judicial  sentence.  But  in  the  phrase  we  are  exam- 
ining it  denotes  the  act,  not  of  a  private  party,  but  of  a  magisterial 
authority.  In  integrum  restitutio  is  the  restitution  by  the  praetor 
of  a  person  to  his  original  legal  condition,  in  cases  when  some  injury 
has  been  done  to  him  by  operation  of  law.  The  interposition  in  such 
cases  of  the  highest  Roman  minister  of  justice  bears  some  analogy 
to  the  use  made  of  the  prerogative  of  the  Crown  in  our  own  early  legal 
history.  The  function  of  thus  overruling  the  law  where  it  collided 
with  equity  was  only  confided  to  the  highest  magisterial  authority, 
and  even  in  his  hands  was  governed  by  the  principle  that  he  was  only 
supposed  to  act  in  a  ministerial,  not  in  a  legislative  capacity.  Five 
grounds  or  titles  (justae  causae)  to  extraordinary  relief  (extraordi- 
narium  auxilium)  were  recognized  and  enumerated  in  the  edict, 
Dig.  4,  1 :  intimidation  (metus),  fraud  (dolus  malus),  absence,  error, 
minority  (aetatis  infirmitas).  Two,  however,  of  these  titles,  fraud 
and  intimidation,  had  additional  remedies  in  the  ordinary  course 
of  procedure  (ordo  judiciorum),  where  they  were  recognized  as 
grounds  of  exception  and  personal  action.  Thus  we  find  that  a 
praetor  called  Octavius  introduced  the  actio  and  exceptio  metus 
mentioned  by  Cicero,  Verr.  2,  3,  65,  where  the  actio  metus  is  called 
Formula  Octaviana,  and  that  the  famous  Aquilius  Gallus,  the 
colleague  of  Cicero,  introduced  the  exceptio  and  the  actio  doli,  Cic. 
de  Natura  Deorum,  3,  30. 

The  chronological  order  of  the  remedy  by  Action  and  the  remedy 
by  Restitution,  like  that  of  the  historical  relation  of  interdict  to 
action,  is  disputed.  Savigny,  §§  112,  191,  199,  holds  that  the  remedy 
by  Restitution  was  older  than  the  remedy  by  Action ;  while  Vangerow, 
§  185,  holds  that  the  remedy  by  Action  was  older  than  the  remedy 
by  Restitution.  As  remedies  they  were  very  different  in  character, 
the  effect  of  a  grant  of  restitution  being  simply  to  reinstate  a  person 
in  a  legal  right,  which  he  had  lost,  not  to  give  him  damages  on 
account  of  the  violation  of  a  right. 

There  are  three  conditions  of  Restitution:  (i)  The  first  condition 
is  a  Laesion  by  the  operation  of  law,  i.  e.  a  disadvantageous  change 
in  civil  rights  or  obligations  brought  about  by  some  omission 
or  disposition  of  the  person  who  claims  relief.  This  disadvantage 
may  either  consist  in  positive  loss  of  acquired  property,  or  in  missing 
a  gain  which  would  not  have  involved,  on  the  part  of  another, 
a  positive  loss  of  acquired  property.  An  instance  of  such  a  laesion 
would  be  the  loss  of  property  by  omitting  to  interrupt  a  usucapio 


118  DE  PERSONIS  [i.  §§  197-200. 

or  by  omitting  to  claim  an  inheritance,  or  by  making  some  omission 
in  procedure.     Cf.  4  §  57. 

(2)  A  second  condition  is  some  special  or  abnormal  position  of  the 
person  who   claims  relief  when  such  special  circumstance   is   the 
cause  of  the  loss  which  he  has  suffered.     Thus  a  minor  may  be 
relieved  against  an  injudicious  bargain,  but  not  against  the  casual 
destruction  of  the  thing  he  has  purchased,    for  this  loss  was   not 
occasioned    by    his    minority    or    inexperience.      Such    abnormal 
positions  (justae  causae)  are  compulsion,  fraud,  minority,  absence, 
error. 

(3)  A  third  condition  of  relief  is  the  absence  of  various  disen- 
titling circumstances.      Thus  relief  is   granted  against   the   effect 
of  legal  dispositions  and  omissions,  but  not  against  the  effect   of 
delicts.     Again  the  extraordinary  relief  of  in  integrum   restitutio 
is  not  granted  when  the  courts  of  law  can  administer  an  adequate 
remedy. 

Originally  capitis  minutio  of  a  defendant  was  ground  for  a  resti- 
tution, 3  §  84  ;  but  this  ceased  at  an  early  period  to  be  anything  more 
than  a  formal  case  of  restitution  ;  for  rescission  of  the  adrogation, 
adoption,  emancipation,  whereby  a  person's  debts  were  extinguished, 
was  granted  as  a  matter  of  course  without  any  previous  investiga- 
tion (causae  cognitio),  and  without  any  period  of  prescription  like  that 
which  limited  the  right  to  pray  for  restitution. 

This  was,  originally,  annus  utilis,  and  in  the  time  of  Justinian, 
quadriennium  continuum  or  four  calendar  years,  which  begin  to  run, 
not  from  the  date  of  the  Laesion,  but  from  the  termination  of  the 
Causa,  i.  e.  the  abnormal  position — minority,  absence,  compulsion, 
deception,  error — whereby  the  Laesion  was  occasioned.  Such  at 
least  is  Savigny's  and  Windscheid's  opinion.  Vangerow  holds  that, 
except  in  Minority  and  Absence,  prescription  begins  to  run  from  the 
date  of  Laesion,  4  §§  110-113,  comm. 

Of  the  five  titles  to  restitution  that  we  have  enumerated,  four, 
namely,  intimidation,  fraud,  absence,  error,  implying  equality  of 
rights  in  all  parties,  belong  to  the  law  of  Things  or  actions  ;  title  by 
minority,  implying  a  privileged  class  or  inequality  of  rights,  belongs 
to  the  law  of  Persons. 

As  we  shall  have  occasion  in  the  next  book,  §§  1-14,  comm.,  to 
use  the  expression  Rerum  universitas,  it  may  seem  appropriate, 
before  we  quit  the  law  of  Persons,  to  give  some  explanation  of  the 
contrasted  term,  Personarum  universitas.  A  University  of  persons 
in  the  private  code  is  a  fictitious  or  juristic  person,  composed 
generally  by  the  union  of  a  number  of  individuals,  and  capable  like 
a  natural  individual  (singularis  persona)  of  the  various  rights  and 
duties  of  property,  that  is  to  say,  of  potestas,  patronatus,  dominium, 


I.  §§  197-200.]     PERSON ARVM  VNIVERSITAS  119 

servitus,   obligatio ;    and  the  power  of  suing  and   being  sued   (cf. 
Sohm,  §§  37,  38). 

Some  Universities  have  a  visible  existence  or  representation  in 
a  number  of  individual  members,  and  are  then  called  Corporations. 
An  essential  incident  of  Corporations  is  that  their  rights  are  not 
vested  in  the  aggregate  of  individuals,  but  in  the  ideal  whole,  regarded 
as  distinct  from  the  members  of  which  it  is  composed.  Examples  of 
such  Corporations  are  municipalities  (civitas,  municipium,  respublica, 
communitas),  colleges  of  priests,  of  Vestal  Virgins,  corporations  of 
subordinate  officials,  e.  g.  lictors,  notaries  (scribae,  decuriae),  industrial 
guilds,  e.  g.  smiths,  bakers,  potters,  shipowners,  mining  companies 
(aurifodinarum,  argentifodinarum,  salinarum,  societas),  contractors 
for  the  revenue  (vectigalium  publicorum  societas),  social  clubs  (soda- 
litates,  sodalitia),  friendly  societies  (tenuiorum  collegia)  (cf.  Mommsen, 
de  Collegiis  et  sodaliciis  Komanorum ;  Karlowa,  Eom.  Eechtsg.  2  §  2). 

Other  juristic  persons,  not  so  visibly  embodied  in  any  natural 
individuals,  e.  g.  temples,  churches,  hospitals,  almshouses,  or  any 
other  beneficent  aims  personified,  are  called  by  civilians,  not  Cor- 
porations, but  Foundations. 

The  state,  though  not  strictly  speaking  a  juristic  person,  as  invested 
with  rights  of  property,  was  called  in  the  time  of  the  republic 
Aerarium.  Under  the  first  emperors,  when  the  public  treasure 
was  divided  between  the  emperor  and  the  senate,  the  senate,  as 
in  a  proprietary  position  representing  the  republic,  was  called 
Aerarium,  while  the  treasury  of  the  emperor  was  called  Fiscus.  At 
an  uncertain  date,  but  after  the  time  of  M.  Aurelius,  when  all  power 
was  undisguisedly  absorbed  by  the  emperor,  and  the  public  chests 
were  united,  the  terms  Aerarium  and  Fiscus  lost  their  distinctive 
meanings,  and  we  find  them  used  convertibly  in  the  compilations 
of  Justinian.  The  Fiscus,  as  a  proprietary  unit,  came  to  have  a 
special  legal  status  and  to  be  invested  with  peculiar  privileges. 

Juristic  persons,  though  invested  with  rights  of  property,  being 
mere  fictions  or  ideal  unities,  are,  strictly  speaking,  incapable  of 
making  a  declaration  of  intention ;  for  how  can  a  fiction  have  an 
intention?  It  is  true  that  slaves  could  acquire  property  and  active 
obligations  for  their  proprietors ;  but  a  slave  could  not  aliene  pro- 
perty, nor  be  himself  subject  to  a  civil  obligation,  nor  be  a  party  to 
a  suit :  and  therefore  Universities  could  not  make  such  dispositions 
by  means  of  their  slaves.  In  this  respect  they  resemble  infants  and 
lunatics ;  and  as  infants  and  lunatics  must  be  represented  by  their 
guardians  and  curators,  so  juristic  persons  must  be  represented  by 
the  agents  designated  and  defined  by  their  constitution.  The  tem- 
porary representative  of  a  Corporation,  for  the  purpose  of  suing  and 
being  sued,  was  called  Actor ;  a  permanent  representative  for  this 


120  DE  PERSONIS  [r.  §§  197-200. 

purpose  was  called  Syndicus,  Gaius  in  Dig.  3,  4,  1.  The  consti- 
tutions of  juristic  persons  are  too  various  to  admit  of  any  general 
definition.  But  a  juristic  person  was  only  bound  by  the  act  of  its 
representative,  in  so  far  as  such  juristic  person  was  benefited  thereby. 
Dig.  12,  1,  27. 

Although  a  Universitas  is  said  to  hold  common  property,  the 
relation  of  the  members  of  a  Universitas  must  not  be  identified  with 
that  of  Co-proprietors  (communio).  A  co-proprietor  is  the  separate 
proprietor  of  an  undivided  ideal  portion,  which  he  can  aliene,  mort- 
gage, and  otherwise  dispose  of ;  and  which,  by  requiring  a  partition 
(actio  communi  dividundo),  he  can  always  reduce  to  a  real  portion : 
whereas  the  whole  of  the  common  property  can  only  be  dealt  with 
if  the  co-proprietors  are  unanimous.  Members  of  a  Universitas, 
on  the  contrary,  cannot  demand  a  partition ;  and  dispositions  of 
the  property  of  the  Universitas  can  only  be  made  by  the  vote 
of  a  majority,  sometimes  only  by  a  majority  of  two-thirds  of  the 
members. 

Every  juristic  person  was  originally  incapable  of  being  instituted 
heir,  as  Pliny  mentions  in  the  case  of  municipalities :  Nee  heredem 
institui  nee  praecipere  posse  rempublicam  constat,  Epist.  5,  7. 
'  Neither  an  inheritance  nor  a  legacy  by  praeceptio  (which  implies 
that  the  legatee  is  also  heir,  2  §  217)  can  be  left  to  a  municipality.' 
Juristic  persons  were  not,  as  is  sometimes  stated  by  Koman  jurists, 
subject  to  this  incapacity  simply  because,  owing  to  the  idea  of 
an  artificial  person  not  having  yet  been  distinctly  formed,  they 
were  regarded  as  personae  incertae,  2  §  238,  but  also  because,  being 
fictions,  they  were  incapable  of  entering  on  an  inheritance  (aditio), 
which  involves  acceptance  on  the  part  of  the  heir,  and  excludes 
representation.  First  the  senate,  disregarding  this  difficulty,  allowed 
municipalities  to  be  instituted  heirs  by  their  own  liberti,  Ulpian  22,  5: 
and  subsequently  the  Emperor  Leo,  A.  D.  469,  gave  to  municipalities 
the  capacity  of  being  instituted  heir  by  any  testator,  Cod.  6,  24,  12. 
No  general  enactment  extended  this  capacity  to  all  Corporations,  but 
some  received  it  as  a  special  privilege. 

Originally  municipalities,  like  other  juristic  persons,  were  in- 
capable of  taking  bequests  (legata),  but  subsequently  they  were 
declared  capable  by  Nerva  and  Hadrian,  Ulpian  24,  28;  2  §  195: 
and  this  capacity  was  extended  to  Collegia,  Templa  and  Churches, 
Dig.  34,  5,  20.  Towns  were  also  capable  of  taking  successions  by 
fideicommissum,  Ulpian  22,  5. 

Under  Christian  legislation  Pious  Foundations  (pia  corpora)  were 
made  capable  of  taking  hereditas  and  legatum:  and  testamentary 
dispositions  of  hereditas  and  legatum,  that  would  otherwise  have 
been  void  by  the  rule  avoiding  devises  to  incerta  persona,  e.  g.  a  devise 


I.  §§  197-200.]     PERSONARVM  VNIVERSITAS  121 

to  the  poor  of  a  town  who,  not  forming  a  corporation,  were  not 
persona  certa,  acquired  validity  from  the  pious  purpose  of  the  dis- 
position. 

The  origin  and  extinction  of  Universitates,  Collegia,  &c.  required 
the  assent  of  the  Emperor.  The  special  privileges  and  incapacities 
which  we  have  indicated,  by  their  analogy  to  status,  may  perhaps 
justify  the  mention  of  Universities  in  the  law  of  Persons.  Savigny, 
§§  85-102. 


COMMENTARIVS   SECVNDYS 

DE  BEBVS  SINGVLIS  ET  DE   RERVM 
UNIVEESITATIBVS 


DE   EEKVM   DIVISIONE. 


§'  1.  Super  lore  commentario 
de  iure  personarum  \  exposui- 
mus  ;  modo  uideamus  de  rebus  ; 
quae  uel  in  nostro  patrimonio 
sunt  uel  extra  nostrum  patri- 
monium  habentur. 

Inst.  2, 1  pr. 

§  2.  Summa  itaque  rerum 
diuisio  in  duos  articulos  didu- 
citur :  nam  aliae  sunt  diuini 
iuris,  aliae  humani. 

§  3.  Diuini  iuris  sunt  ueluti 
res  saerae  et  religiosae. 

Inst.  2, 1, 7. 

§  4.  Sacrae  sunt  quae  diis 
superis  consecratae  sunt ;  reli- 
giosae quae  diisManibusrelictae 
sunt.  Inst.  2,1,8. 

§  5.  Sed  sacrum  quidem  hoc 
solum  existimatur  quod  ex 
auctoritate  populi  Roinani  con- 
secraium  est,  ueluti  lege  de  ea 
re  lata  aut  senatusconsulto 
facto.  Inst.  1.  c. 

§  6.  Religio'sum  uero  nostra 
uoluntate  facimus  mortuum 
inferentes  in  locum  nostrum,  si 
modo  eius  rnortui  funus  ad  nos 
pertineat.  Inst.  2, 1, 9. 

§  7.  Sed  in  prouinciali  solo 
placet  plerisque  solum  religio- 
sum  non  fieri,  quia  in  eo  solo 
dominium  populi  Romani  est 
uel  Caesaris,  nos  autem  pos- 
sessionem  tantum  uel  usum- 
fructum  habere  uidemur;  uti- 
que  tamen  etiamsi  non  sit  reli- 
giosum,  pro  reHgioso  habetur. 


§  1.  In  the  preceding  book  the 
law  of  persons  was  expounded ; 
now  let  us  proceed  to  the  law  of 
things,  which  are  either  subject 
to  private  dominion  or  not  subject 
to  private  dominion. 

§  2.  The  leading  division  of 
things  is  into  two  classes  :  things 
subjects  of  divine,  and  things 
subjects  of  human  right. 

§  3.  Subjects  of  divine  right 
are  things  sacred  and  things  reli- 
gious. 

§  4.  Sacred  things  are  those 
consecrated  to  the  gods  above  ; 
religious,  those  devoted  to  the 
gods  below. 

§  5.  Sacred  things  can  only  be- 
come so  with  the  authority  of  the 
people  of  Rome,  by  consecration 
in  pursuance  of  a  law  or  a  decree 
of  the  senate. 

§  6.  A  religious  thing  becomes 
so  by  private  will,  when  an  in- 
dividual buries  a  dead  body  in  his 
own  ground,  provided  the  burial 
is  his  proper  business. 

§  7.  On  provincial  soil,  accord- 
ing to  most  authorities,  ground 
does  not  become  religious  as  the 
dominion  belongs  to  the  people  of 
Rome  or  the  Emperor,  and  in- 
dividuals only  have  possession  or 
usufruct,  but  such  places,  though 
not  properly  religious,  are  to  be 
regarded  as  quasi-religious. 


IT.  §§  1-14]  DE  RERVM  DIVISIONS 


123 


§  7  a.  Item  quod  in  pro- 
uinciis  nonex  auctoritatepopuli 
Roman!  consecratum  est,  pro- 
prie  sacrum  non  est,  tamen  pro 
sacro  habetur. 

§  8.  Sanctae  quoque  res, 
uelut  mini  et  portae,  quodam- 
modo  diuini  iuris  sunt* 

Inst.  2, 1,10. 

§  9.  Quod  autem  diuini 
iuris  est,  id  nullius  in  bonis 
est ;  id  uero,  quod  humani  iuris 
est,  plerutnque  alicuius  in 
bonis  est :  potent  autem  et  nul- 
lius in  bonis  esse;  nam  res 
hereditariae,  antequam  aliquis 
heres  existat,  nullius  in  bonis 
sunt.  Inst.  1.  c. 

§96. 

(8  fere  uersus  in   C  legi  ne- 

queunt) 
1  *e  domino. 

§  10.  Hae  autem  quae  hu- 
mani iuris  sunt,  aut  publicae 
sunt  aut  priuatae. 

§  11.  Quae  publicae  sunt, 
nullius  mdentur  in  bonis  esse  ; 
ipsius  enim  uniuersitatis  esse 
creduntur.  priuatae  sunt  quae 
singulorum  hominum  sunt. 


§  7  a.  Just  as  provincial  soil,  in 
default  of  the  authorization  of  the 
people  of  Rome,  is  rendered  by 
consecration  not  sacred,  but  quasi- 
sacred. 

§  8.  Sanctioned  places  are  to  a 
certain  extent  under  divine  domi- 
nion, such  as  city  gates  and  city 
walls. 

§  9.  Things  subject  to  divine 
dominion  are  exempt  from  private 
dominion;  things  subject  to  hu- 
man dominion  are  generally  sub- 
ject to  private  dominion,  but  may 
be  otherwise:  for  things  belonging 
to  an  inheritance  before  any  one 
has  become  heir  have  no  actual 
owner. 


§  10.  Things  subject  to  human 
dominion  are  either  public  or  pri- 
vate. 

§  11.  Things  public  belong  to 
no  individual,  but  to  a  society  or 
corporation ;  things  private  are 
subject  to  individual  dominion. 


DE   KEBVS   INCOBPORALIBVS. 


§  12.  Quaedam  praeterea  res 
corporales  sunt,  quaedam  in- 
{corporales}.  Inst.  2, 2  pr. 

§  13.  Corporales  hae  {sunt} 
quae  tangi  possunt,  uelut  fun- 
dus  homo  uestis  aurum  argen- 
tum  et  denique  aliae  res  \nnu- 
merabiles.  Inst.  1.  c. 

§  14.  Incorporates  sunt  quae 
tangi  non  possunt,  qualia  sunt 
ea  quae  iure  consistunt,  sicut 
hereditas  ususfructus  obliga- 
tiones  quoquo  modo  contractae. 
nee  ad  rem  per(tinet,  quod  in 
hereditate  res  corporales  con-~) 


§  12.  Again,  things  are  either 
corporeal  or  incorporeal. 

§  13.  Things  corporeal  are  tan 
gible,  as  land,  a  slave,  clothing, 
gold,  silver,  and  innumerable 
others. 

§  14.  Things  incorporeal  are 
intangible  ;  such  as  those  which 
have  an  existence  simply  in  law  as 
inheritance,  usufruct,  obligation, 
however  contracted.  For  though 
an  inheritance  comprises  things 
corporeal,  and  the  fruits  of  land 


124 


DE  REBVS  SINGVLIS 


[n.  §§1-14. 


tinentur  et  fructus  qui  ex  fundo 
percipiuntur  corporales  suni, 
et  quod  ex  aliqua  obligation e 
nobis  debetur,  id  plerumque 
corporal  est,  uduti  fundus 
homo  pecunia ;  nam  ipsum  ius 
successionis  et  ipsum  ius  utendi 
fruendi  et  ipsum  ius  obliga- 
tionis  incorporate  est.  eodem 
numero  sunt  iura  praediorum 

urbajnorum  et  rusticorum. 

j altius   tollendi 1 

luminibus    uicini   aed non 

extollen|di,  ne  luminibus  uicini 
officiatur.  |  item  fluminum  et 
stilicidiorum ius,  ut — | 


in  aream — ] 1 

ius  aquae    ducendae — j 


Inst.  2, 2, 2  and  3. 


•enjoyed  by  a  usufructuary  are  cor- 
poreal, and  obligations  generally 
bind  us  to  make  over  the  convey- 
ance of  some  thing  corporeal:  land, 
slaves,  money;  yet  the  right  of 
succession,  the  right  of  usufruct, 
and  the  right  of  obligation  are 
incorporeal.  So  are  the  rights 
attached  to  property  in  houses  and 
land.  The  following  are  rights 
attached  to  property  in  houses  ; 
the  right  of  raising  a  building 
and  thereby  obstructing  the  lights 
of  a  neighbouring  building  ;  the 
right  of  prohibiting  a  building 
being  raised,  so  that  one's  lights 
may  not  be  interfered  with  ;  the 
right  of  letting  rain-water  fall  in 
a  body  or  in  drops  on  a  neigh- 
bour's roof  or  area  ;  the  right  of 
having  a  sewer  through  a  neigh- 
bour's area,  or  a  window  in  a 
neighbour's  wall  (cf.  Epit.  2,  1,  3). 
The  following  are  rights  attached 
to  property  in  land  :  iter,  a  right  of 
way  on  foot  or  horseback  ;  actus, 
a  right  of  way  for  ordinary  car- 
riages ;  via,  a  right  of  paved  way 
for  heavy-laden  wagons  ;  pecoris 
ad  aquam  appulsus,  a  right  of 
watering  cattle  ;  aquae  ductus,  a 
right  of  conveying  water  through 
the  tenement  of  another. 

Having  treated  of  the  law  of  Persons  (unequal  rights),  we  proceed 
to  the  law  of  Things  (equal  rights),  and  the  first  right  which  Gaius 
intends  to  discuss  is  the  right  called  Dominion.  Seduced,  however, 
by  an  ambiguity  of  the  word  Kes,  which  signifies  either  a  right  or 
the  subject  of  a  right,  his  opening  statements  (§§  12-14)  are 
deplorably  confused. 

In  order  to  see  our  way,  let  us  first  examine  Kes  as  denoting  the 
Object  of  a  right.  Every  right  implies,  as  we  have  stated,  a  duty ; 
and  eveiy  right  or  duty  implies  at  least  two  persons,  one  of  whom  is 
entitled  to  the  right  while  the  other  is  liable  to  the  duty.  The  imme- 
diate OBJECT  of  every  right  is  an  act  or  forbearance  of  the  person 
who  is  liable  to  the  duty.  But  the  act  or  forbearance  generally 
relates  to  some  body,  that  is,  to  some  tangible  portion  of  the 
external  world,  whether  a  thing  or  a  person.  This  body,  accord- 
ingly, may  be  called  the  mediate,  indirect,  or  secondary  Object  of 


ii.  §§  1-14.]  DE  RERVM  DIVISIONS  125 

the  right.  The  secondary  object  of  a  right,  however,  is  not  always 
a  body ;  it  may  be  corporeal  or  incorporeal.  For  instance,  dominium 
over  land  is  a  right  to  forbearance  on  the  part  of  all  the  world  from 
molestation  of  the  owner  in  dealing  with  the  land.  A  servitude, 
say  a  right  of  way,  is  a  right  to  forbearance  on  the  part  of  all  the 
world  from  molestation  of  the  person  entitled  when  he  passes  over 
certain  land.  A  contractual  right  is  a  right  to  a  positive  act  or  forbear- 
ance on  the  part  of  a  determinate  person,  say,  to  the  conveyance  or 
delivery  of  a  certain  piece  of  land.  In  these  cases,  land,  the  secondary 
object  of  the  right,  is  something  corporeal.  So,  too,  when  a 
person  is  the  object  of  a  right ;  for  instance,  a  child  or  a  gladiator, 
3  §  199,  in  the  possession  (detention  or  custody)  of  the  parent  or 
employer,  and  whose  removal  from  such  possession  engenders  in  the 
removing  party  an  obligation  ex  delicto.  But  in  primordial  rights, 
the  object,  at  least  as  distinguished  from  the  two  parties  in  whom 
the  right  and  duty  respectively  vest,  is  something  incorporeal. 
A  man  has  a  right  to  forbearance  on  the  part  of  all  the  world  from 
molestation  in  his  life,  health,  locomotion,  honour.  These  objects 
of  the  right  are  incorporeal.  Other  rights,  apparently,  have  no 
determinate  object,  corporeal  or  incorporeal,  to  which  they  are 
correlated.  In  a  right  to  the  services  of  a  menial  or  gladiator, 
for  instance,  it  would  be  hard  to  indicate  any  secondary  or  corporeal 
object  to  which  the  obligation  of  the  menial  or  gladiator  relates. 

It  is  clear  that  no  division  of  Objects  of  right  will  coincide  with 
a  classification  of  Eights:  while,  if  we  divide  Ees  in  the  meta- 
physical sense  of  the  World,  or  Being,  or  Existence  (a  sense  sug- 
gested by  the  differentiae,  corporalis,  and  incorporalis),  Dominium, 
like  all  other  rights,  will  be  a  member  of  the  branch  res  incorporales, 
or  Ownership.  Gaius,  however,  wishes  us  to  identify  Dominium 
with  res  corporalis,  and  to  make  Obligation  and  the  fractions  of 
Dominium  (servitutes),  and  even  some  forms  of  Dominium  (e.  g. 
hereditas),  members  of  the  contra-distinguished  branch,  res  incor- 
poralis. (Of.  3  §  83,  omnes  ejus  res  incorporales  et  corporales  quaeque 
ei  debita  sunt.) 

Gaius  was  probably  not  entirely  responsible  for  this  confusion  of 
thought,  which,  perhaps,  was  too  deeply  inwoven  in  the  formulae 
of  Eoman  jurisprudence  to  be  easily  eliminated  by  an  institutional 
writer.  E.  g.  the  declaration  (intentio)  of  a  real  action  (in  rem 
actio)  was  of  the  form  :  Si  paret  (i)  ilium  fundum — (2)  illam 
hereditatem — actoris  esse.  (Cf.  4  §  3  In  rem  actio  est  cum  aut 
corporalem  rem  intendimus  nostram  esse  aut  jus  aliquod  nobis 
competere.)  Now  as  hereditas  is  a  jus  successionis,  §  14,  it  is  clear 
that,  if  the  second  formula  is  correct,  the  first  formula  ought  to  be, 
not,  Si  paret  ilium  fundum — but,  Si  paret  illius  fundi  dominium — 


126  DE  REBVS  SINGVLIS  [n.  §§  1-14. 

actoris  esse.  To  meet  this  and  similar  inaccuracies  of  the  framers 
of  the  formularies,  Gaius  is  misled  into  identifying  in  res  corporalis 
two  things  completely  disparate,  Right  and  the  corporeal  thing  or 
Secondary  Object  of  a  right.  There  is  a  similar  confusion  in  English 
law,  chattels,  tenements,  and  hereditaments  being  sometimes  used  to 
denote  the  objects,  movable  or  immovable,  of  certain  rights,  some- 
times the  rights  over  those  objects :  and  just  as  Res  is  divided  into 
Corporalis  and  Incorporalis,  so  Hereditaments  are  divided  into 
Corporeal  and  Incorporeal ;  although,  if  the  term  denotes  a  right, 
both  branches  are  equally  incorporeal :  if  it  denotes  the  secondary 
object  of  a  right,  both  branches  are  equally  corporeal. 

We  shall  find  hereafter,  4  §§  138-170,  comm.,  that  the  position  of 
POSSESSION  in  Roman  jurisprudence — whether  it  belongs  to  the 
department  of  jus  IN  REM  or  of  OBLIGATIO  EX  DELICTO — is  a  moot 
question ;  but  at  present  we  n«ed  do  no  more  than  notice  the 
existence  of  the  controversy.  We  need  also  only  to  indicate  a 
division  of  rights  and  duties  into  SINGLE  rights  and  duties,  and 
AGGREGATES  of  rights  and  duties  (UNIVERSITAS  JURIS),  such  as 
Hereditas.  A  UNIVERSITAS  JURIS  includes  Obligations  as  well  as 
Rights,  Jus  in  personam  as  well  as  Jus  in  rem,  being  in  fact  the 
succession  of  One  person  to  which  another  person  succeeds.  But  in 
spite  of  the  diverse  character  of  the  elements  of  which  it  is  composed, 
the  JURIS  UNIVERSITAS  itself,  or  the  ideal  whole  of  these  various 
elements,  is  regarded,  «.  g.  in  Hereditatis  petitio,  as  a  real  Right,  not 
an  Obligation  ;  as  a  Jus  in  rem,  not  a  Jus  in  personam. 

As  Graius  thought  that  he  could  obtain  the  idea  of  Dominium  by 
a  division  of  Res  into  corporales  and  incorporales,  so  he  seems  to 
have  thought  that  he  could  distinguish  private  dominium,  the  special 
department  which  he  intends  to  examine,  from  other  forms  of  do- 
minium by  a  further  division  of  Res.  The  phrases  res  divinae,  res 
humanae,  res  communes,  res  publicae,  res  privatae,  do  indeed  sug- 
gest the  notion  that  res  privatae  is  a  specific  member  of  the  genus 
Res  ;  but  the  appearance  is  fallacious.  Very  little  reflection  will 
convince  us  that  res  divinae,  res  publicae,  res  privatae  are  not 
a  division  of  the  OBJECTS  of  property  (res) ;  for  the  same  thing,  a 
piece  of  ground,  for  instance,  may  be  an  object  of  divine  or  public 
or  private  dominion  ;  but  merely  a  division  of  proprietors.  In  res 
divinae,  the  only  doubtful  case,  the  gods  were  deemed  to  be  pro- 
prietors. Sed  et  ilia  interdicta  quae  de  locis  sacris  et  de  religiosis 
proponuntur  veluti  proprietatis  causam  continent,  Dig.  43,  1,  2,  2. 
'  The  interdicts  respecting  sacred  and  religious  places  protect  a 
quasi-pr  operty . ' 

The  division  of  the  objects  of  right  by  their  physical  differences, 
the  only  way  in  which  they  can  be  divided,  though  only  of  subor- 


ii.  §§  1-14.]  DE  KERVM  DIVISIONS  127 

dinate  importance,  and  though  it  cannot  furnish  the  distinctions  of 
Dominium  and  Obligation,  nor  of  Public  and  Private  dominium,  yet 
has  a  considerable  influence  on  jurisprudence,  and  demands  a  certain 
amount  of  attention.  Thus  ocean,  air,  and  light,  as  opposed  to  the 
earth,  are  by  their  nature  essentially  res  communes.  Being  in- 
capable of  appropriation,  they  have  not  been  appropriated  and  are 
held  in  communism.  Again,  in  wild  animals,  as  opposed  to  tame, 
property  is  only  coextensive  with  possession.  On  the  difference 
between  specific  and  generic  things,  or  things  consumed  by  use, 
quae  pondere  numero  mensurave  constant,  and  things  not  consumed 
by  use,  is  founded  the  distinction  between  the  contracts  of  mutuum 
and  commodatum.  Cf.  3  §  9(X  On  the  same  difference  of  specific 
and  generic  things  are  founded  different  rules  relating  to  the  con- 
tract of  sale,  3  §§  139-141,  comm.  ;  and  the  distinction  of  movables 
and  immovables  founds  important  differences  in  Eoman  and  other 
systems  of  law. 

The  phrases  in  nostro  patrimonio  and  extra  nostrum  patrimonium, 
§  1,  are  apparently  equivalent  to  alicujus  in  bonis  and  nullius  in 
bonis,  §  9,  and  to  the  expressions  we  meet  elsewhere,  in  commercio 
and  extra  commercium. 

Of  res  communes,  or  things  such  as  air  and  running  water,  which 
sometimes  come  under  discussion  (cf.  Inst.  2,  1,  1  Et  quidem 
naturali  jure  communia  sunt  omnium  haec:  aer  et  aqua  profluens 
et  mare  et  per  hoc  litora  maris)  but  are  not  mentioned  by  Gaius, 
we  may  observe,  that  they  only  fall  within  the  province  of  positive 
law,  as  belonging  to  the  jurisdiction  of  each  particular  state. 

All  the  things  within  the  territory  of  a  given  state  are  subject  to 
its  dominion  (dominium  eminens),  that  is,  are  res  publicae  in  a 
general  sense  of  the  term.  Of  these  things  it  allows  the  dominium 
over  some  to  vest  in  private  individuals  for  their  own  advantage, 
while  it  retains  the  dominium  over  others  in  itself  as  if  it  were  a 
corporation  or  collective  person  (personarum  universitas).  This 
gives  us  a  division  of  all  things  into  res  privatae  and  res  publicae 
in  a  narrower  sense  of  the  term.  We  must  note,  however,  that  the 
dominium  of  the  state  is  not  exactly  similar  to  private  dominium, 
that  is  to  say,  is  not  dominium  ir  the  proper  sense  or  the  sense  in 
which  the  word  is  used  in  civil  law.  For  the  civil  dominium.  of 
private  persons  is  a  right  protected  and  sanctioned  by  a  political 
superior,  whereas  a  sovereign  state  is  by  hypothesis  in  subjection 
to  no  superior.  A  state,  then,  can  only  be  said  to  have  dominium 
in  a  modified  sense  of  the  word,  that  is,  so  far  as  it  is  not  restrained 
by  any  positive  law  of  any  superior  from  using  and  dealing  with 
certain  things  as  it  may  please. 

Of  things  which  are  objects  of  public  dominion,  some  are  vested 


128  DE  REBVS  SINGVLIS  [n.§§l-14. 

immediately  in  the  state,  others  in  subordinate  persons,  single  or 
corporate,  magistrates,  for  instance,  and  municipalities,  to  be  held 
by  such  persons  for  various  public  purposes.  Among  these  we 
might  also  reckon  res  divini  juris,  though  as  dedicated  to  religious 
purposes,  such  things  were  regarded  by  the  Eomans  as  no  man's 
property,  §§  3-6. 

Another  division  of  res  publicae  is  into  res  in  patrimonio  populi 
and  res  non  in  patrimonio  populi.  Under  the  former  are  included 
the  public  treasury,  the  public  domain,  public  slaves,  bequests 
lapsing  to  the  state  (caduca)  or  res  privatae  otherwise  devolving  on 
the  state  ;  in  other  words,  all  things  of  which  the  state  as  universitas 
retains  not  only  the  property  but  also  the  use  and  disposition  (res 
enim  fiscales  quasi  propriae  et  privatae  principis  sunt,  Dig.  43,  8, 
2,  4).  The  other  class  includes  high  roads,  public  rivers,  public 
buildings,  &c.,  that  is,  all  things  of  which  the  property  is  in  the 
community  and  the  use  in  the  members  of  the  community.  Or 
we  may  say  that  the  property  is  in  the  universitas,  but  it  is  subject 
to  a  personal  servitude  (usus)  vested  in  all  the  private  members  of 
that  universitas  (singuli,  universi). 

Not  only  res  publicae  but  res  privatae  may  be  thus  subject.  For 
instance,  the  banks  of  public  rivers  and  the  trees  thereupon  are  the 
property  of  the  adjacent  proprietors  ;  but  the  navigators  of  these 
rivers  have  the  right  of  mooring,  landing,  unlading,  and  using  the 
banks  in  various  other  ways,  Inst.  2,  1,  4. 

Ownership  (dominium)  absolute  or  pre-eminently  so  called,  may 
be  denned  as  a  right  of  unlimited  duration,  imparting  to  the  owner 
a  power  of  indefinite  enjoyment  or  use,  and  a  power  of  aliening  from 
all  who  in  default  of  alienation  by  him  might  succeed  by  descent ; 
or,  in  other  words,  from  all  successors  interposed  between  himself 
and  the  sovereign  as  ultimus  heres.  It  is  accordingly  sometimes 
said  to  consist  of  jus  utendi,  fruendi,  abutendi ;  where  abusus  includes 
the  power  of  consumption  or  destruction,  of  dereliction,  and  of 
disposition  (sale,  exchange,  gift,  mortgage,  lease,  &c.).  Another 
element  is  equally  important,  the  right  of  exclusion  (jus  prohi- 
bendi).  Another  is  the  jus  transmittendi,  i.  e.  the  right  of  leaving 
the  integral  right,  in  the  absence  of  Disposition,  to  those  whom  he 
would  presumably  have  wished  to  be  his  successors. 

Besides  ownership  (dominium)  Eoman  law  recognizes  various 
kinds  of  partial  property,  real  rights  over  an  object  of  which  the 
dominium  is  in  another  person,  called  jura  in  re  or  jura  in  re 
aliena,  rights  which  fall  short  of  absolute  property  but  approxi- 
mate to  it  in  various  degrees.  Such  rights,  which  are  limitations 
of  ownership,  are  servitudes,  §  14,  mortgage  (pignus),  super- 
ficies, and  emphyteusis.  These  may  all  be  regarded  as  detached 


II.  §§  1-14.]  SERVITUDE  129 

fractions  of  ownership,  portions  of  the  right  of  dominion  taken  from 
the  proprietor  and  vested  in  another  person.  Servitudes  are  explained 
by  Justinian  in  the  parallel  passage  of  his  Institutes  (2,  3-5),  and, 
together  with  the  other  jura  in  re  aliena,  demand  here  a  brief  notice. 

Servitudes  are  (i)  praedial  or  real  (praediorum),  that  is,  belong  to 
a  person  as  owner  of  a  certain  house  or  land  (praedium  dominans) 
in  respect  of  a  house  or  land  belonging  to  another  proprietor  (prae- 
dium serviens),  or  (2)  personal  (personarum),  that  is,  are  vested  in 
a  person  without  relation  to  his  ownership  of  praedium  dominans, 
and  being  thus  inseparably  attached  to  him  they  are  inalienable  and 
determine  at  his  death.  (Compare  in  English  law  the  division  of  ease- 
ments into  easements  appurtenant  to  land  and  easements  in  gross.) 

Praedial  servitudes  are  servitudes  in  the  strictest  sense,  being  con- 
trasted with  ownership  by  their  precise  and  definite  circumscription. 
Ownership  (dominium)  is  a  right  against  the  world  which  gives  to 
the  party  in  whom  it  resides  a  power  of  dealing  with  the  subject 
which  is  not  capable  of  exact  definition.  Servitude  is  such  a  right 
against  the  world  as  gives  to  the  party  in  whom  it  resides  a  power 
of  using  the  subject  which  is  susceptible  of  precise  description.  It  is 
a  definite  subtraction  from  the  indefinite  powers  of  use  and  exclusion 
which  reside  in  the  owner ;  or  a  right  against  the  owner  and  the  rest 
of  the  world  to  make  certain  use  of  a  thing  or  prohibit  certain  uses. 

Praedial  servitudes  are  (i)  rustic,  relating  to  land,  or  (2)  urban, 
relating  to  houses.  Urban  servitudes  are  further  subdivided  into 
Positive  or  Affirmative  and  Privative  or  Negative.  The  following 
considerations  will  show  the  meaning  of  this  division  and  its  origin 
in  the  nature  of  Property. 

Servitudes  are  limitations  of,  or  deductions  from,  another  person's 
ownership  or  dominium.  Dominium  contains,  among  other  elements, 
(A)  certain  powers  of  action  (jus  utendi),  and  (B)  certain  powers  of 
exclusion  (jus  prohibendi).  Kestrictions  on  these  powers  will  be 
(a)  a  certain  necessitas  non  utendi,  and  (6)  a  certain  necessitas 
patiendi.  Correlative  to  these  duties  on  the  part  of  the  owner 
of  the  servient  tenement  will  be  certain  rights  of  the  owner  of  the 
dominant  tenement,  viz.  (a)  a  certain  jus  prohibendi,  and  (/3)  a 
certain  jus  utendi,  or  in  other  words,  (a)  a  certain  negative  servitude, 
and  (#)  a  certain  affirmative  servitude.  As  it  happens  that  all  the 
servitudes  which  public  policy  has  recognized  in  relation  to  land 
are  of  an  Affirmative  character  (except  Si  concedas  mini  jus  tibi 
non  esse  in  fundo  tuo  aquam  quaerere,  minuendae  aquae  meae  gratia, 
Dig.  8,  1,  15  pr.  though,  as  Windscheid  remarks,  there  is  no  reason 
why  this  should  not  also  be  an  urban  servitude — )  and  relate  to  some 
transient  action  (except  Ut  tugurium  mihi  habere  liceret  in  tuo, 
scilicet  si  habeam  pascui  servitutem  aut  pecoris  appellendi,  ut,  si 


130        DE  ADQVIRENDO  RERVM  DOMINIO     [n.§§l-14. 

hiems  ingruerit,  habeam  quo  me  recipiam,  Dig.  8,  3,  6,  1),  they  may 
be  called  jus  faciendi :  while  those  relating  to  houses  are  both  Affirma- 
tive and  Negative  (jus  prohibendi).  Affirmative  Urban  servitudes, 
implying  some  permanent  structure,  may,  in  conformity  with  classical 
usage  (e.  g.  jus  tignum  immissum  habendi)  for  the  sake  of  distinction 
from  the  Rural  servitudes,  be  called  jus  habendi  :  they  resemble  them 
in  the  generic  character  that  they  are  each  a  jus  utendi. 

(1)  Instances  of  Rural  servitude  (jus  faciendi)  are  iter,  or  jus  eundi, 
right  of  way  for  beast  and  man  on  foot  or  on  horseback  over  the 
servient  tenement  to  the  dominant  tenement ;  actus  or  jus  agendi, 
right   of  way  for   ordinary  carriages  (not  for  heavy-laden  wagons) ; 
via  (or  jus  vehendi  ?),  right  of  paved  way  for  heavy-laden  wagons  ; 
aquae  haustus,  the  right  of  drawing  water  from  a  private  spring  ; 
aquae  ductus,  the  right  of  conveying  water  over  the  servient  tene- 
ment ;  pecoris  ad  aquam  appulsus,  the  right  of  watering  cattle ;  jus 
pecoris  pascendi,  the  right  of  pasturing  cattle  ;  jus  calcis  coquendae, 
the  right  of  burning  lime  ;  jus  cretae  eximendae,  the  right  of  quarry- 
ing for  chalk ;  jus  arenae  fodiendae,  the  right  of  taking  sand ;  jus 
silvae  caeduae,  the  right  of  cutting  wood  in  a  wood  suitable  for  the 
purpose. 

(2)  Instances   of  affirmative   urban  servitudes   are  jus   tigni  im- 
mittendi, the  right  of  inserting  a  beam  in  a  neighbour's  wall ;  jus 
oneris  ferendi,  the  right  of  resting  a  weight  on  a  neighbour's  wall  or 
column  (this  servitude  involves  on  the  part  of  the  servient  owner  the 
positive  obligation  of  repairing  the  servient  wall  (refectio) ;  whereas 
all  other  servitudes,  as  real  rights,  are  contradistinguished  from  obliga- 
tions or  personal  rights,  by  corresponding  to  the  merely  negative 
duty  of  abstention ;  cf.  Windscheid,  Pandekten,  1  §  2 1 1  a,  note  3) ; 
jus  protegendi,  the  right  of  projecting  a  roof  over  the  soil  of  a  neigh- 
bour ;  jus  stillicidii  recipiendi  or  avertendi  or  immittendi,  the  right 
of  directing  the  rainfall  on  to  a  neighbour's  roof  or  area ;  jus  cloacae 
immittendae,  the  right  of  making  a  sewer  through  the  area  of  a  neigh- 
bour; servitus  luminum  or  jus  luminis  immittendi,  the  right  of  having 
a  window  in  a  neighbour's  wall ;    jus  officiendi  luminibus  vicini, 
the  reacquired  right  of  an  owner  to  diminish  the  light  of  a  neighbour ; 
jus  altius  tollendi,  the  reacquired  right  of  an  owner  to  increase  the 
height  of  a  structure,  §  31  ;  the  right  of  storing  fruit  in  his  villa,  ut 
fructus  in  vicini  villa  cogantur  coactique  habeantur ;  of  placing  quar- 
ried stones  on  his  land,  posse  te  cedere  jus  ei  esse  terram,  rudus,  saxa, 
jacere  posita  habere,  et  ut  in  tuum  lapides  provolvantur  ibique  positi 
habeantur,  Dig.  8,  3,  3,  1  and  2.     Vangerow  holds  that  Aquaeductus, 
implying  jus  habendi,  though  it  is  servitus  Rustica  as  to  the  land 
from  which  water  is  taken,  is  servitus  Urbana  as  to  the  land  over 
which  water  is  conveyed. 


II.  §§1-14.]  SERVITUDE  131 

(3)  Instances  of  jus  prohibendi  are  jus  altius  non  tollendi,  the 
right  of  forbidding  a  neighbour  to  raise  the  height  of  his  buildings  ; 
jus  ne  prospectui  officiatur,  the  right  of  having  a  prospect  uninter- 
cepted  ;  jus  ne  luminibus  officiatur,  the  right  of  having  the  access  of 
light  to  one's  windows  obstructed ;  jus  stillicidii  non  avertendi,  the 
reacquired  right  of  prohibiting  my  neighbour  from  discharging  his 
rainfall  into  my  area.  Inst.  2,  3. 

Personal  servitudes  (Inst.  2,  4  and  5)  are  rights  of  a  less  limited 
character  in  respect  of  user,  but  more  restricted  as  to  duration  than 
praedial :  instances  are  Habitatio,  the  right  of  occupying  a  house  ; 
Usus,  the  right  of  using  a  thing  and  consuming  its  immediate  fruits 
or  products,  without  the  right  x>f  letting  the  thing  or  selling  its  pro- 
ducts ;  of  acquiring,  in  other  words,  its  rent  and  profits,  which  may 
be  regarded  as  its  mediate  or  secondary  fruits.  Fructus,  usually  called 
Ususfructus,  the  further  right  of  leasing  the  thing  and  selling  its 
fruits.  Habitatio,  Usus,  Ususfructus  were  usually,  though  not  in- 
variably, life  interests,  and,  unlike  real  servitudes,  implied  Detention 
of  the  object ;  Possession  of  it,  as  opposed  to  Detention  (4  §§  138-170, 
comm.),  remaining  in  the  proprietor.  For  the  modes  of  creating  and 
vindicating  servitudes,  see  §§  28-33  ;  4  §  88,  comm.  Servitus  was  the 
only  jus  in  re  aliena  belonging  to  jus  civile.  The  other  jura  in  re  aliena, 
subsequently  instituted,  were  pignus,  superficies  and  emphyteusis. 

Pignus  or  hypotheca,  as  developed  by  praetorian  law,  was  the  right 
of  a  creditor  in  a  thing  belonging  to  his  debtor,  maintainable  against 
any  one,  in  order  to  secure  satisfaction  of  his  debt.  The  praetorian 
action,  by  which  the  creditor  could  claim  possession  of  the  thing 
pledged,  corresponding  to  the  vindicatio  of  the  owner,  is  called  actio 
quasi  Serviana  in  *em  or  hypothecaria.  See  3  §§  90,  91,  comm. 

Superficies  is  the  right  of  a  person  who,  having  rented  land  for 
building  on  a  long  or  perpetual  lease,  has  built  a  house  on  it,  which 
according  to  jus  gentium,  by  the  rule  of  Accession,  is  the  property 
of  the  proprietor  of  the  soil ;  cf.  Inst.  2,  1,  29.  The  Praetor,  how- 
ever, recognized  in  the  superficiarius  a  jus  in  re  which  he  protected 
by  an  interdict  de  superficie  and  ?  ~  actio  in  rem  utilis. 

Jus  in  agYo  vectigali  or  emphyteusis,  as  this  species  of  right  came 
to  be  called  subsequently  to  the  time  of  Gaius,  from  waste  lands  of 
the  Emperor  being  let  out  under  this  kind  of  tenancy  to  be  planted 
or  cultivated,  was  a  perpetual  lease  which  transferred  to  the  tenant 
or  emphyteuta  most  of  the  rights  of  the  owner.  Accordingly  he 
could  maintain  actio  vectigalis  in  rem  against  any  one  to  recover 
possession  of  the  land  thus  leased  to  him.  See  3  §  145.  Although 
emphyteusis  might  be  of  unlimited  duration,  and  was  alienable  with- 
out the  consent  of  the  owner,  subject  to  his  right  of  pre-emption, 
yet  the  owner  had  a  right  of  recovering  the  land  for  breach  of  con- 

K  -2, 


132    DE  ADQVIRENDO  RERVM  DOMINIO    [n.  §§  14  o-27. 

dition,  or  failing  heirs  of  the  emphyteuta,  much  as  the  feudal  lord 
of  a  fee  could  recover  the  fief  on  forfeiture  or  escheat  of  the  tenant, 
emphyteusis  being  even  regarded  by  some  as  the  model  on  which 
feudaj  tenure  was  instituted.  This  forfeiture  or  escheat  to  the  lord 
of  the  fee  makes  property  in  land  theoretically  imperfect,  like 
emphyteusis,  falling  short  of  ownership.  Property  in  chattels,  on  the 
contrary,  is  not  held  of  a  superior,  and,  therefore,  is  absolute. 

The  Profits  and  Easements  of  English  law  generally  correspond  to 
the  Servitutes  of  Roman  law.  But  the  principle :  Servitutium  non 
ea  natura  est  ut  aliquid  faciat  quis,  sed  ut  aliquid  patiatur  aut  non 
faciat,  Dig.  8,  1,  15,  1  :  '  Servitudes  are  not  a  right  to  a  performance 
but  to  a  permission  or  forbearance : '  would  exclude  from  the  class  of 
Servitudes  some  members  of  the  class  of  Profits ;  e.  g.  Rents,  which 
are  said  to  lie  in  render,  i.  e.  to  involve  a  performance  of  the  party 
burdened,  not  in  prender,  i.  e.  not  to  consist  in  an  act  of  the  party 
entitled.  Roman  law  adhered  strictly  to  the  principle  that  Real 
rights,  or  rights  against  the  world,  can  only  correlate  to  negative 
duties,  duties  of  forbearance ;  and  that  rights  correlating  to  positive 
obligations,  or  duties  of  performance,  can  only  be  Personal ;  i.  e.  can 
only  regard  a  particular  individual  and  his  universal  successors. 

§§  14a-27.  Having  described  the  various  kinds  of  real  right  (jus 
in  rem),  i.  e.  dominium  and  its  fractions  (jura  in  re),  we  proceed  to  the 
TITLES  of  real  rights,  that  is  to  say,  the  events  to  which  these  rights 
are  annexed  by  the  law  ;  in  other  words,  the  modes  prescribed  by  the 
law  by  which  such  rights  may  be  acquired  ;  in  other  words,  the  legal 
definitions  of  the  classes  of  persons  in  whom  such  rights  are  declared 
to  be  vested. 

The  Titles  of  real  rights  are  divisible  into  Titles  by  which  single 
real  rights  are  acquired  and  Titles  by  which  aggregates  of  rights 
(universitates  jurum)  are  acquired. 

Titles  by  which  single  real  rights  are  acquired  are  divisible  into 
Titles  sanctioned  by  the  civil  law  (jus  civile)  and  Titles  sanctioned  by 
natural  law  (jus  gentium,  jus  naturale),  natural  law  denoting  the  rules 
of  Roman  law  introduced  by  praetors,  jurists  and  statutes,  as  con- 
sonant to  the  general  reason  of  mankind. 

Titles  to  ownership  by  civil  law  are  mancipatio,  in  jure  cessio, 
usucapio,  and  others  which  will  be  mentioned.  Titles  by  natural  law 
are  traditio,  occupatio,  accessio,  and  others  which  will  be  mentioned, 
§  35.  We  commence  with  Titles  by  civil  law. 

RERVM   CORPORALTVM   ADQVISITIONES   CIVILES. 

§  14  a.      aut    mancipi         §14a.  Things  are  further  divided 

sunt  aut  nee  mancipi.  |  Man-      into  mancipable  and  not  manci- 
cipi    sunt 1  item    aedes    in      pable ;   mancipable  are  land  and 


IT.  §§  14  o-27.]   RERVM  C.  ADQVISITIONES  CIVILES       133 


Italico  solo 1 1 

serui\tutes  praediorum  urbano- 
rum  nee  mancipi  sunt.  \ 

1§120;  Ulp.19,1. 


§  15.  Item  stipendiaria  prae- 
dia  et  tributaria  nee  mancipi  | 

sunt.  sed  quod  diximus 1 

mancipi  esse 1 statim  ut 

nata  sunt  mancipi  esse  putan£ ; 
Nerua  uero  et  Proculus  et 
ceteri  diuersae  scholae  auctores 
non  aliter  ea  mancipi  esse 
putant,  quam  si  domita  sunt ; 
et  si  propter  Tiimiam  feritatem 
domari  non  possunt,  tune  uideri 
mancipi  esse  incipere,  cum  ad 
earn  aetatem  peruenerit,  qua 
domari  solent. 

§  16.  Item  ferae  bestiae  nee 
mancipi  sunt  uelut  ursi  leones, 
item  ea  animalia  quae  fere 
bestiarum  numero  sunt,  ueluti 
elephanti  et  cameli ;  et  ideo  ad 
rem  non  pertinet,  quod  haec 
animalia  etiam  collo  dorsoue 
domari  solent ;  nam  ne  nonien 
quidem  eorum  animalium  illo 
tempore  (notum}  fuit,  quo  con- 
stituebatur  quasdam  res  man- 
cipi esse,  quasdam  nee  mancipi. 

§  17.  Item  fere  omnia  quae 
incorporalia  sunt  nee  mancipi 
sunt,  exceptis  seruitutibus 
praediorum  rusticorum ;  nam 
eas  mancipi  esse  constat,  quam- 
uis  sint  ex  numero  rerum  in- 
corporalium. 

§  18.  Magna  autem  dif- 
ferentia est  inter  mancipi  res 
et  nee  mancipi. 

§  19.  Nam  res  nee  mancipi 
ipsa  traditione  pleno  iure 
alterius  fiunt,  si  modo  cor- 
porales  sunt  et  ob  id  recipiunt 
traditionem. 


houses  in  Italy ;  tame  animals 
employed  fordraught  and  carriage, 
as  oxen,  horses,  mules,  and  asses  ; 
rustic  servitudes  over  Italian  soil ; 
but  urban  servitudes  are  not 
mancipable. 

§  15.  Stipendiary  and  tributary 
estates  are  also  not  mancipable. 
According  to  my  school  animals 
which  are  generally  tamed  are 
mancipable  as  soon  as  they  are 
born ;  according  to  Nerva  and 
Proculus  and  their  followers,  such 
animals  are  not  mancipable  until 
tamed,  or  if  too  wild  to  be  tamed, 
until  they  attain  the  age  at  which 
other  individuals  of  the  species 
are  tamed. 


§  16.  Things  not  mancipable 
include  wild  beasts,  as  bears, 
lions ;  and  semi-wild  beasts,  as 
elephants  and  camels,  notwith- 
standing that  these  animals  are 
sometimes  broken  in  for  draught 
or  carriage ;  for  their  name  was 
not  even  known  at  the  time  when 
the  distinction  between  res  man- 
cipi and  nee  mancipi  was  estab- 
lished. 


§  17.  Also  things  incorporeal, 
except  rustic  servitudes  on  Italian 
soil ;  for  it  is  clear  that  these  are 
mancipable  objects,  although  be- 
longing to  the  class  of  incorporeal 
things. 

§  18.  There  is  an  important 
difference  between  things  manci- 
pable and  things  not  mancipable. 

§  19.  Complete  ownership  in 
things  not  mancipable  is  trans- 
ferred by  merely  informal  delivery 
of  possession  (tradition),  if  they 
are  corporeal  and  capable  of 
delivery. 


134    DE  ADQVIRENDO  RERVM  DOMINIO    [n.  §§  14  a-27. 


§  20.  Itaquo  si  tibi  western 
uel  aurum  uel  argentum  tradi- 
dero  siue  ex  uenditionis  causa 
siue  ex  donationis  siue  quauis 
alia  ex  causa,  statim  tua  fit  ea 
res,  si  modo  ego  eius  dominus 
sim. 

§  21.  Jn  eadem  causa  sunt 
prouincialia  praedia,  quorum 
alia  stipendiaria  alia  tributaria 
uocamus.  stipendiaria  sunt  ea, 
quae  in  his  prouinciis  sunt, 
quae  propriae  populi  Romani 
esse  intelleguntur ;  tributaria 
sunt  ea,  quae  in  his  prouinciis 
sunt,  quae  propriae  Caesaris 
esse  creduntur.  Inst.  2, 1, 40. 

§  22.  Mancipi  uero  res  sunt, 
quae  per  mancipation  em  ad 
aliurn  transferuntu  r ;  unde  etiam 
mancipi  res  sunt  dictae.  quod 
autem  ualet  (mancipatio,  idem 
ualet  et  in  iure  cessio. 

§  23.  Et}  mancipatio  qui- 
dem  quemadmodum  fiat,  supe- 
riore  commentario  tradidimus. 

§  24.  In  iure  cessio  autem 
hoc  modo  fit :  apud  magistra- 
tum  populi  Romani,  ueluti 
praetorem,  is  cui  res  in  iure 
ceditur  rem  tenens  ita  dicit 

HVNC  EGO  HOMINES!  EX  1VRE 
QVIKITIVM  MEVM  ESSE  AIO  ; 

deinde  postquam  hie  uindica- 
uerit,  praetor  interrog&t  eum 
qui  cedit,  an  contra  uindicet ; 
quo  negante  aut  tacente  tune 
ei  qui  uindicauerit,  earn  rem  ad- 
dicit ;  idque  legis  actio  uoca- 
tur.  hoc  fieri  potest  etiam  in  pro- 
uinciis apud  praesides  earum. 

§  25.  Plerumque  tamen  et 
fere  semper  mancipationibus 
utimur.  quod  enim  ipsi  per 
nos  praesentibus  amicis  agere 
possumus,  hoc  non  est  necesse 
cum  maiore  difficultate  apud 


§  20.  Thus  when  possession  of 
clothes  or  gold  or  silver  is  de- 
livered on  account  of  a  sale  or 
gift  or  any  other  cause,  the  pro- 
perty passes  at  once,  if  the  person 
who  conveys  is  owner  of  them. 

§  2 1.  Similarly  transferable  are 
estatesinprovincial  lands,  whether 
stipendiary  or  tributary;  stipen- 
diary being  lands  in  provinces 
subject  to  the  dominion  of  the 
people  of  Borne  ;  tributary,  lands 
in  the  provinces  subject  to  the 
dominion  of  the  Emperor. 


§  22.  Mancipable  things,  on  the 
contrary,  are  such  as  are  conveyed 
by  mancipation,  whence  their 
name ;  but  surrender  before  a 
magistrate  has  exactly  the  same 
effect  in  this  respect  as  mancipa- 
tion. 

§  23.  The  process  of  mancipa- 
tion was  described  in  the  preced- 
ing book  (1  §  119). 

§  24.  Conveyance  by  surrender 
before  a  magistrate  (in  jure  cessio) 
is  in  the  following  form :  in  the 
presence  of  some  magistrate  of  the 
Roman  people,  such  as  a  praetor, 
the  surrenderee  grasping  the  ob- 
ject says :  I  SAY  THIS  SLAVE  is  MY 

PKOPERTY     BY     TITLE     QuiKITAKY. 

Then  the  praetor  interrogates  the 
surrenderor  whether  he  makes  a 
counter-vindication,  and  upon  his 
disclaimer  or  silence  awards  the 
thing  to  the  vindicant.  This 
proceeding  is  called  a  statute- 
process  ;  it  can  even  take  place  in 
a  province  before  the  president. 

§  25.  Generally,  however,  and 
almost  always  the  method  of  man- 
cipation is  preferred ;  for  why 
should  a  result  that  can  be  accom- 
plished in  private  with  the  assist- 
ance of  our  friends  be  prosecuted 


n.  §§  14  a-27.]  RERVM  C.  ADQVISITIONES  CIVILES       135 


praetorem  aut  apud  praesidem 
prouinciae  agere. 

§  26.  Quodsi  neque  manci- 
pata  neque  in  iure  cessa  sit  res 
mancipi 

(6  uersus  in  C  legi  nequeunt) 
|*plena    possessio    con- 
ex  formula  qua  hi 
— I 1  fructus 


with  greater  trouble  before  the 
praetor  or  president  of  the  pro- 
vince ? 

§  26.  If  neither  mancipation 
nor  surrender  before  the  magis- 
trate is  employed  in  the  convey- 
ance of  a  mancipable  thing  .... 


cessa- 
qu  — 
na  — 


§  27.    Item   adhuc  i- 


(4  uersus  in  C  legi  nequeunt) 
jnon   fuissent— — -| 

(7  uersus  in  C  legi  nequeunfy 

-s 1 1  estquo 

nomine 1 ere  uel 1 

praedium [dem   ulla  libera 

ciuitas odraonendi    sumus 

—  |  esse,     prouincialis     soli 

nexum    non   e |  significa- 

tionem  solum  ItaMcuro.  man- 
cipi esi.projuinciale  nee  mancipi 
est.  aliter  enim  ueteri  lingua 
a| mancipa — |. 

§§  14a-23.  Mancipable  things — things  taken  by  the  hand  and  so 
alienable — were  at  first,  probably,  the  more  important  accessories  of 
a  farm,  that  is,  slaves  and  beasts  of  burden — oxen,  horses,  mules  and 
asses  (1  §  1 20),  land  itself  in  Italy  and  rural  servitudes  attaching  to 
such  land  being  subsequently  made  mancipable. 

These,  the  objects  of  principal  value  to  an  agricultural  community, 
became  alienable  by  means  of  the  formal  proceeding  by  bronze  and 
balance,  called  mancipation,  which  Gaius  says  (1,  119)  is  an 
imaginary  sale. 

In  its  origin,  however,  mancipation  appears  to  have  been  not  an 
imaginary,  but  a  genuine  sale  for  valuable  consideration.  The  intro- 
duction of  coined  money  by  making  the  weighing  of  the  bronze  in 
the  scales  a  formality  first  gave  the  proceeding  an  appearance  of  un- 
reality, but  in  order  to  maintain  its  original  character,  the  Twelve 
Tables,  which  were  passed  at  the  time  when  this  important  monetaiy 
change  took  place,  expressly  declared  that  no  property  should  pass  by 
mancipation,  unless  the  price  was  actually  paid  to  the  mancipating 
party  or  security  given  him  for  it  (cf.  Inst.  2,  1 ,  41  Venditae  vero  et 
traditae  non  aliter  emptori  adquiruntur,  quam  si  is  venditori  pretium 
solverit  vel  alio  modo  ei  satisfecerit,  veluti  expromissore  aut  pignore 
dato  :  quod  cavetur  etiam  lege  duodecim  tabularum) — where  traditae 


136     DE  ADQVIRENDO  KERVM  DOMINIO     [n.  §§  14  a-27. 

is  an  evident  Tribonianism  for  mancipatae.  But  this  law  was  after* 
wards  evaded  by  juristic  ingenuity,  the  practice  of  paying  only  a 
nominal  sum — a  single  sesterce — being  held  to  be  a  sufficient  com- 
pliance with  it.  This  made  it  possible  to  use  mancipation  as  a  mere 
conveyancing  form.  Even  in  the  case  of  genuine  sales,  it  was  found 
advantageous  only  thus  to  pay  a  nominal  sum  in  the  mancipation 
itself  and  to  make  the  payment  of  the  purchase  money  something 
entirely  apart,  for  by  this  means  the  mancipating  party  in  fact  escaped 
the  liability  imposed  on  him  by  the  Twelve  Tables  of  paying,  as 
warrantor  of  the  title  (auctor),  double  the  price  to  the  other  party  to 
the  transaction  in  case  of  the  latter  being  evicted  (cf.  Cic.  pro  Mur. 
2,  3,  in  Caec.  19,  54),  and  it  had  the  further  advantage  that  the  pur- 
chaser was  enabled  to  acquire  ownership  by  the  mancipation  before  he 
had  paid  the  actual  purchase  money  (cf.  Muirhead,  Koman  Law,  §  30  ; 
Sohm,  pp.  51,61).  How,  by  means  of  the  nuncupation  and  by  collateral 
fiduciary  agreements,  mancipation  was  adapted  to  effect  various  legal 
purposes,  may  be  seen  in  other  parts  of  the  text  and  commentary. 

The  form  of  mancipation  (1,  119)  shows  its  archaic  origin.  If,  as 
has  been  thought  by  many  modern  writers,  the  witnesses  to  it 
originally  represented  the  five  classes  of  the  Eoman  people,  manci- 
pation, at  least  in  its  ultimate  form,  cannot  have  been  earlier  than 
the  Servian  constitution,  by  which  this  division  of  the  people  was 
made.  The  advantage  of  requiring  the  presence  of  a  number  of 
citizens  to  bear  testimony  to  important  transfers  of  property  in  an 
age  when  writing  was  not  in  common  use  is  apparent. 

§§  24-26.  In  jure  cessio — the  other  mode  of  transfer  peculiar  to 
Jus  Civile,  and  so  likewise  confined  to  Eoman  citizens,  is  an  adapta- 
tion of  the  legis  actio  per  vindicationem  to  conveyancing  purposes, 
depending  for  its  operation  on  the  collusive  admission  by  the 
defendant  of  the  supposed  plaintiff's  claim  (confessus  pro  judicato 
est).  This  fictitious  process,  which  is  not  so  primitive  in  character 
as  mancipation,  though  it  was  also  recognized  by  the  law  of  the 
Twelve  Tables,  must  have  been  introduced  to  circumvent  the  law 
in  order  to  effect  objects  unattainable  by  direct  means,  such  as  the 
manumission  of  slaves.  Though  Quiritary  ownership  could  be  thus 
conveyed,  it  was,  for  the  reason  given  in  §  25,  rarely  employed  for 
this  purpose.  But  for  creating  or  transferring  some  kinds  of  rights 
surrender  before  a  magistrate  was  essential,  §§  30,  34. 

In  jure  cessio  or  surrender  before  a  magistrate  cannot  fail  to 
recall  to  an  English  lawyer  two  similar  modes  of  alienation  that 
recently  existed  in  English  jurisprudence,  alienation  by  Fine  and 
alienation  by  Kecovery,  both  of  which,  like  in  jure  cessio,  were 
based  on  a  fictitious  action ;  in  both  of  which,  that  is  to  say, 
although  the  parties  did  not  really  stand  in  the  relation  of  adverse 


IT.  §§  14  o-27.]  KERVM  C.  ADQVISITIONES  CIVILES       137 

litigants,  the  alienee  was  supposed  to  recover  an  estate  by  process  of 
law.  By  a  Fine,  an  action  commenced  against  the  alienor  and  at 
once  terminated  by  his  acknowledging  the  right  of  the  alienee,  a 
tenant  in  tail  could  aliene  the  fee  simple,  so  far  at  least  as  to  bar 
his  own  issue.  By  a  Recovery,  a  tenant  in  tail  could  convey  an 
absolute  estate  in  fee.  This  was  an  action  supposed  to  be,  not  like 
a  Fine  immediately  compromised,  but  carried  on  through  every 
regular  stage  to  the  conclusion  ;  whereby  the  alienee  recovered 
judgement  against  the  alienor,  who  in  his  turn  recovered  judgement 
against  an  imaginary  warrantor  whom  he  vouched  to  warranty  (cf. 
laudat  auctorem,  3  §  141,  comm.). 

Res  nee  mancipi,  that  is  all  objects  of  individual  ownership,  other 
than  res  mancipi,  were  the  only  things  allowed  to  pass  in  complete 
ownership  (pleno  jure)  simply  by  tradition,  §  19. 

This  informal  mode  of  alienation  did  not,  like  mancipatio,  in  jure 
cessio,  and  usucapio,  belong  to  Jus  Civile,  but  to  Jus  Gentium,  §  65  ; 
and  was  of  later  introduction  than  these. 

The  tradition  or  informal  delivery  of  some  res  nee  mancipi  must, 
however,  have  been  common  from  the  earliest  times,  though  such 
tradition  would  have  been  regarded  at  first  merely  as  a  delivery  of 
possession,  to  be  protected  by  the  law  of  theft,  not  as  a  title  of 
ownership,  to  be  asserted  by  vindicatio.  At  a  later  period,  however, 
in  order  to  facilitate  commerce,  tradition  became  by  the  influence  of 
jus  gentium  a  mode  of  acquiring  ownership  in  things  which  did  not 
belong  to  the  privileged  class  of  res  mancipi.  By  tradition,  which  is 
a  transfer  of  possession,  ownership  may  be  also  transferred,  if  the  trans- 
feror is  himself  owner;  otherwise  conformably  to  the  principle  'Nemo 
plus  juris  transferre  potest,  quam  ipse  habet ' — possession  only  passes, 
bona  fide  possession,  if  the  transferee  knows  nothing  of  his  defective 
title,  mala  fide,  if  he  is  aware  of  it.  If  we  consider  Surrender  before 
a  Magistrate,  Mancipation,  Tradition,  we  shall  see  that  they  are 
only  three  forms  of  one  identical  title,  Alienation.  The  substance 
or  essence  of  the  title,  the  intention  on  the  one  side  to  transfer 
property,  on  the  other  to  accept  ;.t,  is  the  same  in  all  three  ;  it  is 
only  the  adventitious,  or  accidental,  or  evidentiary  portion  of  the 
title  in  which  they  differ. 

Although  delivery  of  possession,  like  the  solemnities  of  manci- 
pation and  surrender,  is,  as  compared  with  the  will  or  intention  of 
the  parties,  only  an  evidentiary  and  declaratory  part  of  the  title ; 
yet  both  parcels,  delivery  of  possession,  as  well  as  agreement,  are 
indispensable  in  the  transfer  of  ownership.  '  Traditionibus  et  usu- 
capionibus  dominia  rerum,  non  nudis  pactis  transferuntur,'  Cod. 
2,  3,  20.  '  Tradition  and  usucapion,  not  bare  agreement,  operate  as 
a  transfer  of  ownership.'  Tradition,  which  is  only  applicable  to 


138     DE  ADQVIRENDO  RERVM  DOMINIO    [n.  §§14a-27. 

corporeal  things,  is  usually  effected  by  some  physical  act  of  appro- 
priation, but  it  may  take  place  without  any  such  actual  delivery 
being  made  at  the  time.  This  occurs  when  a  vendor  agrees  to  hold 
the  property  he  sells  on  account  of,  or  as  agent  of,  the  purchaser 
(constitutum  possessorium),  or  when  a  person  already  holding  a  thing 
on  account  of  the  vendor,  e.  g.  as  a  deposit,  or  loan,  agrees  to  purchase 
it  (traditio  brevi  manu).  (Inst.  2,  1,  44.) 

We  have  spoken  of  tradition  as  a  title  whereby  ownership  was 
acquired.  Tradition,  however,  was  only  an  element,  usually  the 
final  element,  of  the  complex  mode  of  acquisition,  to  which  it  gives 
its  name.  To  be  capable  of  passing  property,  delivery  must  be 
accompanied  by  another  element,  usually  an  antecedent  element, 
some  contract  of  sale  or  other  legal  ground,  which  is  evidence  of  an 
intention  to  aliene.  '  Nunquam  nuda  traditio  transfert  dominium, 
sed  ita  si  venditio  vel  aliqua  justa  causa  praecesserit,  propter  quam 
traditio  sequeretur,'  Dig.  41,  1,  31  pr.  It  is  clear  that  bare 
delivery,  or  transfer  of  physical  control,  without  any  further  ele- 
ment of  Title,  cannot  pass  Dominium,  for  in  Loan  for  Use  (commo- 
datum)  such  transfer  merely  passes  what  may  be  called  Detention 
without  Possession ;  in  Pledge  (pignus)  it  passes  what  may  be  called 
derivative  Possession  ;  in  Deposit  it  usually  passes  Detention  alone, 
but  sometimes  Possession  also,  though  in  this  case  also  it  is  derivative 
Possession,  not  Possession  of  the  thing  as  one's  own.  (4  §§  138-170, 
comm.)  The  cases  in  which  Ownership  (Dominium)  is  passed  by 
Tradition  may  be  reduced  to  three  classes,  traditio  donandi  animo, 
traditio  credendi  animo,  and  traditio  solvendi  animo.  In  the  first, 
it  simply  confers  ownership  on  the  donee ;  in  the  second,  it  confers 
ownership  on  the  transferee,  and  subjects  him  to  an  obligation ;  in 
the  third,  it  confers  ownership  on  the  transferee,  and  discharges  the 
transferor  of  an  obligation.  In  the  two  latter  cases,  i.  e.  tradition  by 
way  of  loan,  as  of  money  (mutui  datio),  and  tradition  by  way  of  pay- 
ment (solutio),  the  disposition  or  justa  causa  accompanying  tradition 
contains  much  thatis  unessential  to  the  transfer  of  dominium  or  owner- 
ship, the  only  absolutely  essential  element  being  the  intention  of  the 
parties  to  convey  and  take  dominium.  In  Donation  the  justa  causa  tra- 
ditionis  consists  solely  of  this  essential  element.  The  justa  causa,  then, 
which  must  accompany  delivery,  must  involve  the  animus  or  voluntas 
transferendi  dominii,  and  this,  apparently,  is  given  as  the  whole 
of  the  matter  in  a  passage  of  Gaius  quoted  in  Digest :  '  Hae  quoque 
res,  quae  traditione  nostrae  fiunt,  jure  gentium  nobis  adquiruntur ; 
nihil  enim  tarn  conveniens  est  naturali  aequitati  quam  voluntatem 
domini  volentis  rem  suam  in  alium  transferre  ratam  haberi,'  Dig. 
41,  1,  9,  3.  Tradition  is  a  mode  of  acquisition,  'in  accordance  with 
Jus  Gentium,  for  it  is  a  plain  dictate  of  natural  justice,  that  the 


§§  14  a-27.]     RERVM  C.  ADQVISITIONES  CIVILES          139 

will  of  an  owner  to  transfer  his  ownership  to  another  should  be 
allowed  to  take  effect.' 

In  one  case,  as  we  have  seen,  the  operation  even  of  contract  and 
delivery  combined  was  limited  by  the  Twelve  Tables,  namely,  in 
Sale.  Hence  it  came  about  that  tradition  did  not  operate  a  trans- 
mutation of  property  without  a  further  condition — payment  of  the 
purchase  money,  unless  the  sale  is  intended  to  be  a  sale  on  credit, 
or  satisfaction  is  made  to  the  vendor  in  some  way.  Inst.  2,  1,  41. 
Delivery  sometimes  precedes  the  intention  to  transfer,  for  instance,  in 
a  conditional  sale  ;  in  which  case  the  transfer  of  property  may  be  sus- 
pended until  the  condition  is  fulfilled.  The  intended  transferee  may 
be  an  incerta  persona,  for  instance,  when  money  is  scattered  among 
a  mob  by  a  praetor  or  consul  (missilium  jactus).  Inst.  2,  1,  46. 

Tradition  in  Roman  law  was  never  fictitious ;  it  was  always  an 
actual  delivery  of  a  power  of  physical  or  corporeal  control,  so  the  de- 
livery of  the  keys  of  a  house  is  not  something  symbolical  or  fictitious, 
but  a  real  transfer  of  a  power  of  exercising  dominion.  The  restriction 
of  tradition,  as  a  mode  of  acquiring  ownership,  to  res  nee  mancipi 
had  previously  to  the  time  of  Gaius  lost  much  of  its  importance,  the 
Praetor  protecting  one  to  whom  a  res  mancipi,  such  as  land,  had 
been  delivered,  as  if  Quiritarian  ownership  of  it  had  been  obtained 
by  usucapion,  §  41.  In  Justinian's  time  Tradition  had  entirely  super- 
seded the  civil  titles  of  surrender  before  the  magistrate  and  manci- 
pation :  the  ancient  distinction  between  res  mancipi  and  res  nee 
mancipi  being  no  longer  in  existence. 

§  21.  This  section  contains  the  clearest  statement  which  we  possess 
of  the  technical  distinction  between  the  two  classes  of  provinces 
instituted  by  Augustus.  Those  which  were  not  under  the  direct 
control  of  the  Princeps  were  technically  under  the  control  of  the 
Senate  and  People  (compare  Dio  Cassius,  liii.  12) ;  but,  as  the  People 
was  mainly  represented  by  the  Senate,  they  are  often  spoken  of  as 
Senatorial  Provinces.  The  provinces  of  Caesar  were  far  more 
numerous  ;  about  the  time  of  Gaius  they  numbered  thirty-one — 
twenty-one  being  governed  by  Legati  pro  praetore,  nine  by  Pro- 
curators, and  Egypt  by  its  Praefect — while  the  Public  Provinces 
under  Proconsuls  numbered  but  eleven.  See  Marquardt,  Staatsver- 
waltung,  i.  p.  494.  The  attempt  to  keep  these  departments  distinct 
was  a  failure  ;  and  the  control  of  the  Public  Provinces  by  the  Prin- 
ceps was  now  very  considerable,  especially  in  matters  of  jurisdiction. 
But  the  technical  difference  between  the  two  kinds  of  provinces  was 
still  preserved  in  the  reign  of  Marcus  Aurelius.  Thus  we  find  that 
Emperor  causing  provinces  to  be  transferred  from  the  one  to  the 
other  category  in  obedience  to  military  considerations,  and  asking 
the  Senate  to  vote  money  to  him  from  the  Aerarium,  the  treasury 


140      DE  ADQVIRENDO  RERVM  DOMINIO     [n.  §§  28-39. 

which  contained  the  dues  from  the  Public  Provinces  (Vita  Marci,  22, 
Dio  Cassius,  Ixxi.  33). 

During  the  Kepublic  the  taxes  paid  by  provincials  had  been 
called  stipendium — a  word  which  points  to  the  view  originally  taken 
that  these  revenues  were  meant  to  meet  military  expenses  ;  for 
stipendium  means  pay  for  the  army.  During  the  Principate  the 
word  tributum  came  also  to  be  used  for  imperial  taxes ;  but  this 
passage  of  Graius  shows  that  stipendium  was  "still  employed  for  the 
dues  paid  by  the  Public  Provinces.  The  distinction  between  stipen- 
diary and  tributary  provinces  is  perhaps  based  on  a  difference  in 
the  mode  of  collecting,  not  of  levying,  the  taxes.  It  seems  that  in 
the  Public  Provinces  the  taxes  were  still  collected  by  the  local 
governments  themselves  and  paid  to  the  Quaestors,  whereas  in 
Caesar's  Provinces  the  Procurators  came  into  direct  contact  with  the 
tax-payer.  The  mode  of  collection  was  in  the  second  case  direct, 
in  the  first  indirect.  It  is  also  possible  that  the  ownership  of  the  soil 
in  Caesar's  Provinces  was  regarded  as  vested  in  the  Princeps,  that 
of  the  soil  in  the  Public  Provinces  as  vested  in  the  Eoman  state  (see 
Mommsen,  Staatsrecht,  ii.  p.  1088),  and  this  distinction  may  be  im- 
plied in  the  two  classes  of  provincialia  praedia  mentioned  by  Gaius. 

The  mode  of  taxation  was  uniform  for  the  whole  Empire,  and  the 
assessments  were  made  at  intervals  by  the  Emperor's  officials.  The 
taxes  were  either  imports  on  the  land  (tributum  soli)  or  on  the  person 
(tributum  capitis).  The  land-tax  was  in  most  provinces  paid  either 
in  money  or  grain,  more  usually  in  the  former,  although  in  certain 
minor  districts  it  was  delivered  in  the  form  of  other  produce.  The 
personal  tax  might  be  one  on  professions,  income,  or  movable 
property.  Occasionally  it  was  a  simple  poll-tax,  this  latter  burden 
being  probably  imposed  on  those  provincials  whose  property  fell 
below  a  certain  rating. 

§  24.  The  legati  Caesaris  or  Presidents  of  imperial  provinces  had 
originally  on  jurisdiction  to  preside  over  legis  actio,  but  this  was 
afterwards  conferred  upon  them,  Tac.  Ann.  12,  60. 

§  26.  Gaius  probably  explained  in  this  place  the  effect  of  tradition 
of  a  res  mancipi,  §  41,  and  then  went  on  to  treat  of  the  jus  commercii. 
Ulp.  19,  4,  5  Mancipatio  locum  habet  inter  cives  Eomanos  et  Latinos 
coloniariosLatinosque  Junianos  eosque  peregrines  quibus  commercium 
datum  est.  Commercium  est  emendi  vendendique  invicem  jus. 

RERVM   INCORPORALIVM  ADQVISITIONES   CIVILES. 

§  28.  (Res)  incorporates  tra-  §  28.  Incorporeal  things  are 

ditionem  non  recipere  mani-  obviously  incapable  of  transfer  by 

festum  est.  delivery  of  possession  (traditio). 

§  29.    Sed  iura  praediorum  §29.  But  while  before  a  magis- 


ii.  §§  28-39.]  RERVM  INC.  ADQVISITIONES  CIVILES     141 


urbanorum  in  iure  cedi  (tan- 
turn)  possunt ;  rusticorum  uero 
etiam  mancipari  possunt. 

^» 

§  30.  Vsusfructus  in  iure 
cessionein  tantum  recipit.  nam 
dominus  proprietatis  alii  usum- 
fructum  in  iure  cedere  potest, 
ut  ille  usumfructum  habeat  et 
ipse  nudam  proprietatem  reti- 
neat.  ipse  ususfructuarius  in 
iure  cedendo  domino  proprie- 
tatis usumfructum  efficit,  ut 
a  se  discedat  et  conuertatur 
in  proprietatem  ;  alii  uero  in 
iure  cedendo  nihilo  minus  ius 
suum  retine£;  creditur  enim 
ea  cessione  nihil  agi. 

§  31.  Sed  haec  scilicet  in 
|  Italicis  praediis  ita  sunt,  quia 
j  et  ipsa  praedia  mancipationem 
et  in  iure  cessionem  recipiunt. 
alioquin  in  prouincialibus  prae- 
diis siue  quis  usumfructum  siue 
ius  eundi  agendi  aquamue  du- 
cendi  uel  altius  tollendi  aedes 
aut  non  tollendi,  ne  lumini- 
bus  uicini  officiatur,  ceteraque 
similia  iura  constituere  uelit, 
pactionibus  etsiipulationibus  id 
efficere  potest,  quia  ne  ipsa  qui- 
dem  praedia  mancipationem  aut 
{^71}  iure  cessionem  recipiuni. 
§  32.  Bed  cum  ususfructus 
et  hominum  et  ceterorum  ani- 
malium  constitui  possit,  intel- 
legere  debemus  horum  usum- 

r   &  ,  .  ... 

iructum  etiam.  in  prouincns  per 

in  iure  cessionem  constitui  posse. 

|  33.    QuocZ  autem  diximus 

!  usumfructum  in  iure  cessionem 

/  tantum  recipere,  non  est  temere 

dictum,    quamids    etiam    per 

mancipationem  constitui  possit 

eo  quod  in   mancipanda  pro- 

prietate    detrahi    potest;    non 

enim  ipse  ususfructus   manci- 


trate  urban  servitudes  can  only 
be  created  by  surrender  before  a 
magistrate  ;  rural  servitudes  may 
either  be  acquired  by  this  method 
or  by  mancipation. 

§  30.  Usufruct  can  only  be 
created  by  surrender.  A  usufruct 
surrendered  by  the  owner  of  the 
property  passes  to  the  surrenderee, 
leaving  the  bare  property  in  the 
owner.  A  usufruct  surrendered 
by  the  usufructuary  to  the  owner 
of  the  property  passes  to  the  latter 
and  is  merged  in  the  ownership. 
Surrendered  to  a  stranger  it  con- 
tinues in  the  usufructuary,  for  the 
surrender  is  deemed  inoperative. 


§  31.  These  modes  of  creating 
usufruct  are  confined  to  estates  in 
Italian  soil,  for  only  these  estates 
can  be  conveyed  by  mancipa- 
tion or  judicial  surrender.  On 
provincial  soil,  usufructs  and 
rights  of  way  on  foot,  horseback, 
and  for  carriages,  watercourses, 
rights  of  raising  buildings  or  not 
raising,  not  obstructing  lights, 
and  the  like,  must  be  created  by 
pact  and  stipulation ;  for  the  lands 
themselves,  which  are  subject  to 
these  servitudes,  are  incapable 
of  conveyance  by  mancipation  or 
surrender  before  a  magistrate. 

§  32.  In  slaves  and  other 
animals  usufruct  can  be  created 
even  on  provincial  soil  by  sur- 
render before  a  magistrate. 


§  33.  My  recent  statement  that 
usufruct  was  only  constituted  by 
surrender  before  a  magistrate  was 
not  inaccurate,  although  it  may 
in  this  sense  be  created  by  man- 
cipation that  we  may  mancipate 
the  property  and  reserve  the  usu- 
fruct ;  for  the  usufruct  itself  is 


142      DE  ADQVIRENDO  RERVM  DOMINIO     [n.  §§  28-39. 


patur,  sed  cum  in  mancipanda 
proprietate  deducatur,  eo  fit  ut 
&pud  alium  ususfructus,  apud 
alium  proprietas  sit. 


§  34.  Hereditas  quoque  in 
iure  cessionem  tantum  recipit. 

§  35.  Nam  si  is,  ad  quern  ab 
intestate  legitimo  iure  pertinet 
hereditas,  in  iure  earn  alii  ante 
aditionem  cedat,  id  est  ante- 
quam  heres  extiterit,  proinde 
fit  heres  is  cui  in  iure  cesserit, 
ac  si  ipse  per  legem  ad  here- 
ditaiem  uocatus  esset ;  post 
obligationem  uero  si  cesserit, 
nihilo  minus  ipse  heres  per- 
manet  et  ob  id  creditoribus 
tenebitur^  debita  uero  pereunt 
eoque  modo  debitores  heredi- 
tarii  lucrum  faciunt;  corpora 
uero  eius  hereditatis  proinde 
transeunt  ad  eum  cui  cessa  est 
hereditas,  ac  si  ei  singula  in 
iure  cessa  fuissent. 

§  36.  Testamento  autem 
scriptus  heres  ante  aditam 
quidem  hereditatem  in  iure 
cedendo  earn  alii  nihil  &git  ; 
postea  uero  quam  adierit  si 
cedat,ea  accidunt,  quae  proxime 
diximus  de  eo  ad  quern  ab  in- 
testato  legitimo  iure  pertinet 
hereditas,  si  post  obligationem 
(in)  iure  cedat. 

§  37.  Idem  et  de  necessariis 
heredibus  diuersae  scholae  au- 
ctores  existimant,  quod  nihil 
uidetur  interesse  utrum  (ali- 
quis)  adeundo  hereditatem  fiat 
heres,  an  inuitus  existat ;  quod 
quale  sit,  suo  loco  apparebii. 
sed  nostri  praeceptores  putant 
nihil  agefe  necessarium  here- 
dem,  cum  in  iure  cedat  heredi- 
tatem. 


not  mancipated,  though  in  manci- 
pating  the  property  the  usufruct 
is  reserved  so  that  the  usufruct 
is  vested  in  one  person  and  the 
property  or  ownership  in  another. 

§34.  Inheritances  also  are  only 
alienable  by  surrender  before  a 
magistrate. 

§  35.  If  the  person  entitled  by 
the  statutory  rules  of  the  civil 
law  of  intestacy  surrender  the  in- 
heritance before  acceptance,  that 
is  to  say,  before  his  heirship  is 
consummated,  the  surrenderee  be- 
comes heir  j  ust  as  if  he  was  en  titled 
by  agnation  ;  but  if  the  agnate 
surrenders  after  acceptance,  in 
spite  of  the  surrender  he  con- 
tinues heir  and  answerable  to  the 
creditors,  his  rights  of  action 
beingextinguished  and  the  debtors 
to  the  estate  thus  discharged  of 
liability  without  payment,  while 
the  ownership  in  the  corporeal  ob- 
jects of  the  inheritance  passes  to 
the  surrenderee  just  as  if  it  had 
been  surrendered  in  separate  lots. 

§  36.  The  surrender  of  an  in- 
heritance by  a  person  instituted 
heir  by  will  before  acceptance  is 
inoperative  ;  but  after  acceptance 
it  has  the  operation  just  ascribed 
to  the  agnate's  surrender  of  an 
intestate  succession  after  accept- 
ance. 


§  37.  And  so  has  a  surrender 
by  a  necessary  successor  according 
to  the  authorities  of  the  other 
school,  who  maintain  that  it 
seems  immaterial  whether  a  man 
becomes  heir  by  acceptance  or 
whether  he  becomes  heir  ipso 
jure,  irrespective  of  his  intention 
(a  distinction  that  will  be  ex- 
plained in  its  proper  place)  :  ac- 
cording to  my  school  a  necessary 
heir's  surrender  of  the  inheri- 
tance is  inoperative.  [3  §  85.] 


ii.  §§28-39.]  RERVM  INC.  ADQVISITIONES  CIVILES     143 

§  38.    Obligationes    quoquo  §  38.  Obligations,  in  whatever 

modo   contractae   nihil    eorura  way  contracted,  are  incapable  of 

recipiunt.     nam  quod  mini  ab  transfer  by  either  method.     For 

aliquo  debetur,  id  si  uelim  tibi  if  I  wish  to  transfer  to  you  my 

deberi,  nullo  eorum  modo  qui-  claim  against  a  third  person,  none 

bus    res    corporales    ad  alium  of  the  modes  whereby  corporeal 

transferuntur   id    efficere   pos-  things  are  transferred  is  effective  : 

sum,  sed  opus  est,  ut  iubente  bu*  *  k  "JJ""?1  St*  ^V™7 

me   tu  ab  eo  stipuleris  ;   quae  order  the  debtor  should  bind  him- 

/E  .,      ,          r  vi  self  to  you  by  stipulation :  where- 
res  efficit  ut  a  me  hberetur  et  m    debtor  is  discharged  of 

mcipiat  tibi  teneri ;  quae  dicitur  hfg  del/to  me  and  becomes  liable 

nouatio  obligations.  to  you .  which  transformation  is 

§  39.  Sine  hac  uero  nouatione  called  novation  of  an  obligation, 
non  poteris  tuo  nomine  agere,         §  39.  In  default  of  such  nova- 

sed  debes  ex  persona  mea  quasi  tion  he  cannot  sue  in  his  own 

cognitor  aut   procurator  nieus  name,  but  must  sue  in  my  name 

experiri.  as  mv  cognitor  or  procurator. 

§  28.  So  incorporeal  hereditaments  in  English  law  were  said  to 
lie  in  grant,  not  in  feoffment,  i.  e.  to  be  only  conveyable  by  deed,  or 
writing  under  seal ;  whereas  corporeal  hereditaments  were  convey- 
able by  feoffment,  i.  e.  by  livery  of  seisin  or  delivery  of  possession. 

§  30.  Inalienability  was  no  peculiar  characteristic  of  Usufruct  and 
other  personal  servitudes.  Alienation  of  rights,  or  singular  succes- 
sion as  opposed  to  inheritance  or  universal  succession,  was  the  excep- 
tion, not  the  rule.  Dominion  over  res  singulae  was  alienable,  but 
almost  all  other  rights  were  intransferable.  If  we  except  the  case  of 
hereditas  legitima  delata,  §  35,  hereditas,  as  we  shall  see,  was  inalien- 
able :  and  what  is  said  of  Urban  and  Eural  praedial  servitudes,  §§  29,  30, 
refers  to  their  creation,  not  to  their  alienation.  In  the  law  of  Per- 
sons, Patria  potestas,  1  §  134,  and  Tutela  in  some  cases,  1  §  168, 
could  be  transferred  but  only  by  surrender  before  a  magistrate  (in 
jure  cessio),  i.  e.  a  process  which  feigned  that  there  was  no  transfer. 
Manus  and  mancipium  could  be  extinguished  but  not  transferred 
[Ihering,  §  32],  except  that,  apparently,  mancipium  could  be  retrans- 
ferred  to  the  natural  parent  or  ma_cipator,  1  §  132. 

§  31.  It  appears  that  convention  (pactio  et  stipulatio)  alone  un- 
accompanied by  tradition  or  quasi-tradition  was  capable  of  creating 
a  right  analogous  to  a  Roman  servitude  in  provincial  land,  to  which 
in  jure  cessio  and  mancipatio  were  inapplicable,  in  opposition  to  the 
principle  of  Roman  law,  as  stated  by  some  modern  writers,  that  mere 
agreement  can  only  create  at  the  utmost  an  obligation  (jus  in  perso- 
nam),  and  in  order  to  create  a  jus  in  rem  must  be  accompanied  by  de- 
livery of  possession.  But  in  our  authorities  this  principle  is  confined 
to  res  corporales,  which  alone  admit  of  real  tradition.  Exceptional 
instances  in  which  agreement  without  any  further  accompaniment 


144      DE  ADQVIRENDO  RERVM  DOMINIO     [n.  §§  28-39. 

creates  a  jus  in  rem,  that  is,  transfers  either  dominion  or  jus  in 
re  aliena,  arehypotheca  (see  3  §  91,  comm.)  and  societas  omnium  bono- 
rum  (see  3  §  148).  Vangerow,  however,  holds,  §  350,  that  pactio  and 
stipulatio  could  not  create  a  genuine  servitus,  enforceable  against  the 
servient  person  or  tenement,  but  only  an  Obligatio,  enforceable  against 
the  contracting  party  and  his  heirs :  that  in  the  time  of  Gaius  this 
was  all  that  could  be  accomplished  ;  but  that  afterwards,  when  quasi- 
traditio  of  res  incorporalis  was  recognized  as  practicable,  genuine 
Servitudes  could  be  thus  constituted.  The  distinction  between 
solum  Italicum  and  provinciale  was  subsequently  abolished,  and 
in  jure  cessio  and  mancipatio  disappeared.  In  the  Institutes  of 
Justinian  we  are  told  that  both  praedial  servitudes  (Inst.  2,  3,  4)  and 
the  personal  servitude  of  usufruct  (Inst.  2,  4,  2)  are  created  by  pacts 
and  stipulations,  nothing  being  there  said  of  quasi-traditio,  as  a  con- 
dition of  acquiring  servitudes.  The  combination  of  pact  and  stipula- 
tion for  the  purpose  has  been  explained  as  an  amalgamation  of  foreign 
and  Koman  law,  a  mere  pact  being  recognized  by  the  former,  but 
unless  embodied  in  a  stipulation  unenforceable  by  the  latter  (cf.  Sohm, 
§  69  ;  Dernburg,  Pandekten,  §  251,  n.  16). 

§  32.  In  accordance  with  the  principle  that  movables  are  personal, 
a  Roman  could  convey  movable  property  by  conveyances  confined 
to  citizens,  wherever  such  property  was  situated. 

The  servitus  altius  tollendi,  or  the  right  of  increasing  the  height 
of  an  edifice,  is  at  first  sight  very  enigmatical.  My  right  of  increas- 
ing the  height  of  my  building,  and  thus  obstructing  the  lights  of  my 
neighbour,  would  seem  to  be  part  and  parcel  of  my  unlimited  rights  of 
dominion :  and,  if  a  dispute  arose,  one  would  think  that  the  burden 
of  proof  would  be  on  my  neighbour,  who  would  have  to  prove  a 
special  limitation  of  my  rights  as  owner  of  a  praedium  serviens  and 
a  special  right  residing  in  himself  as  owner  of  a  praedium  dominans : 
that  is  to  say,  that  instead  of  my  having  to  prove  a  servitude  or  jus 
altius  tollendi,  my  neighbour  would  have  to  prove  a  servitude  or  jus 
altius  non  tollendi.  Cum  eo,  qui  tollendo  obscurat  vicini  aedes,  quibus 
non  serviat,  nulla  competit  actio,  Dig.  8,  2,  9.  'A  man  who  by 
building  obscures  his  neighbour's  lights,  unless  subject  to  a  servitude, 
is  not  actionable.'  Altius  aedificia  tollere,  si  domus  servitutem  non 
debeat,  dominus  ejus  minime  prohibetur,  Cod.  3,  34,  8.  'A  man 
cannot  be  prevented  from  raising  the  height  of  his  house  unless  it  is 
subject  to  a  servitude.'  The  same  rule  is  laid  down  in  English 
law.  The  following  is  perhaps  the  most  probable  solution  of  the 
problem : 

The  extinction  of  Rural  and  Urban  servitudes  was  governed  by 
different  rules.  The  extinction  of  a  Rural  servitude  was  more  easily 
accomplished  than  that  of  an  Urban  servitude  :  it  was  effected  by 


ii.  §§28-39.]  RERVM  SINGVLARVM  ADQVISITIONES   145 

simple  non-user  (non  utendo)  on  the  part  of  the  dominant  property  for 
a  period,  originally,  of  two  years,  afterwards  of  ten.  The  extinction 
of  an  Urban  servitude  demanded,  besides  the  negative  omission  of 
use  on  the  part  of  the  dominant,  a  positive  possession  of  freedom 
(usucapio  libertatis)  on  the  part  of  the  servient  owner.  Gaius  (ad 
Edictum  Provinciale,  Dig.  8,  2,  6)  thus  explains  the  difference  :  in 
a  servitus  ne  amplius  tollantur  aedes,  or  ne  luminibus  aedium 
officiatur,  if  the  windows  of  the  dominant  house  are  closed  with 
masonry  there  is  a  non-usus  of  the  servitude  on  the  part  of  the 
dominant  owner  ;  if  at  the  same  time  the  height  of  the  servient 
house  is  raised  there  is  possession  of  freedom  on  the  part  of  the 
servient  owner.  Or  in  a  servitus  tigni  immissi,  if  the  dominant 
owner  removes  the  beam  from  his  neighbour's  wall  there  is  on  his 
part  non-usus ;  if  the  servient  owner  builds  up  the  orifice  in 
which  the  beam  was  inserted,  there  is  on  his  part  usucapio  liber- 
tatis. Originally  Servitudes,  like  Dominium,  could  be  acquired  by 
Usucapion  ;  and  as  Usucapion  was  applied  to  the  extinction  of  Urban 
Servitudes,  it  was  regarded  by  the  jurists  as  a  mode  of  acquiring  or 
of  creating  an  antagonistic  servitude.  On  the  extinction  of  a  Rural 
servitude,  the  servient  property  simply  recovered  its  original  dimen- 
sions :  an  Urban  servitude  was  a  permanent  diminution  of  the 
servient  property,  and  on  its  extinction  the  servient  property,  instead 
of  dilating  to  its  original  size,  recovered  what  it  had  lost  in  the  shape 
of  the  annexation  of  a  contrary  servitude.  When  at  an  unknown 
date  the  Usucapion  of  servitudes  was  abolished  by  a  lex  Scribonia, 
an  exception  was  made  in  favour  of  these  Contrary  servitudes,  which 
in  fact  were  not  genuine  servitudes,  but  merely  the  expression  of  the 
greater  difficulty  of  extinguishing  an  Urban  servitude.  Libertatem 
servitutium  usucapi  posse  verius  est,  quia  earn  usucapionem  sustulit 
lex  Scribonia,  quae  servitutem  constituebat,  non  etiam  earn,  quae  liber- 
tatem  praestat  sublata  servitute,  Dig.  41,  3.  4,  28.  'The  better  view  is 
that  extinction  of  servitude  by  usucapion  is  admissible,  for  the  usuca- 
pion  abolished  by  the  lex  Scribonia  was  usucapion  whereby  a  servitude 
is  constituted,  not  that  which  liberates  by  extinction  of  servitude. ' 
Thus  he  who  laboured  under  a  disability  of  building  (jus  altius  non 
tollendi)  was  regarded  on  its  extinction  as  having  acquired  the  oppo- 
site easement,  jus  altius  tollendi ;  he  wrho  was  relieved  of  the  servitus 
ne  luminibus  officiatur  was  regarded  as  acquiring  a  jus  officiendi 
luminibus  vicini ;  he  who  was  relieved  from  the  servitus  stillicidii 
avertendi  in  tectum  vel  aream  vicini  was  deemed  to  acquire  a  jus  stil- 
licidii non  avertendi,  Gaius  ad  Edictum  Provinciale,  Dig.  8,  2,  2.  It 
does  not  appear  that  the  ordinary  requisites  of  Usucapio,  titulus  and 
bona  fides  (§  61,  comm.),  were  required  in  this  usucapio  libertatis. 
In  usucapio  libertatis,  a  right  being  acquired,  the  ten  years  are 


WHITTUCK 


146       DE  ADQVIRENDO  RERVM  DOMINIO    [ir.  §§  40-61. 

complete  on  the  commencement  of  the  last  day :  in  non-usus,  a  right 
being  lost,  the  ten  years  are  not  complete  till  the  last  day  is  termin- 
ated. 

The  three  servitudes,  ne  prospectui  officiatur,  ne  luminibus  officiatur. 
ne  altius  tollatur,  are  similar  in  character,  but  differ  in  their  degree  of 
extension.  The  servitus  ne  luminibus  officiatur  is  not  so  extensive  as 
the  servitus  ne  prospectui  officiatur,  for  that  may  amount  to  an  obstruc- 
tion of  prospect  which  does  not  cause  a  diminution  of  light,  Dig.  8,  2, 
1 5  :  but  is  wider  than  servitus  altius  non  tollendi,  because  light  may  be 
intercepted  by  other  causes  than  buildings,  by  plantation,  for  instance, 
though  building  is  the  principal  means  of  interception. 

Servitus  luminum  has  been  already  noticed,  §§  1-14,  comm.,  as 
apparently  identical  with  jus  luminis  immitteiidi,  i.  e.  the  right  of 
having  a  window  in  a  neighbour's  wall.  Luminum  servitute  con- 
stituta  id  adquisitum  videtur  ut  vicinus  lumina  nostra  excipiat, 
Dig.  8,  2,  4.  'The  servitude  of  Lights  entitles  the  owner  of  the 
dominant  house  to  have  a  window  in  the  wall  of  his  servient 
neighbour.' 

It  appears  from  the  above  explanation  that  the  servitus  luminum 
and  the  servitus  ne  luminibus  officiatur  belong  to  different  categories, 
for  the  servitus  luminum,  like  the  jus  officiendi  luminibus,  belongs 
to  the  category  of  jus  habendi ;  while  the  servitus  ne  luminibus 
officiatur  belongs  to  the  category  of  jus  prohibendi. 

§  34.  Of.  3  §§  85-87.  The  statement  that  an  inheritance  is  not 
mancipable  may  seem  inconsistent  with  what  we  are  afterwards  told 
of  the  testament  by  bronze  and  balance,  §  102.  There  is,  however, 
no  real  inconsistency.  The  subject  mancipated  in  the  will  by  bronze 
and  balance,  though  a  universitas,  was  not  an  inheritance — there  was 
no  inheritance  to  mancipate,  for  nemo  est  heres  viventis — but  the 
collective  rights — familia,  patrimonium — of  the  testator. 

§  38.  The  mode  of  transferring  obligations  may  be  more  properly 
considered  hereafter,  when  we  examine  the  titles  by  which  Jus  in 
personam  originates  or  terminates,  3§§  155-162,  comm.  Gaius  glanced 
at  the  titles  to  Hereditas  and  Obligatio  because  he  was  treating  of 
Res  incorporales  under  which  they  are  included ;  but  he  should 
have  abstained  from  discussing  Obligatio  because  he  is  now  dealing 
with  Jus  in  rem,  and  he  should  have  abstained  from  discussing 
Hereditas  because  he  is  now  dealing  with  Res  singulae. 

§'40.  Sequitur  ut  admonea-  §  40.  We   must   next  observe 

mus   apud    peregrines   quidem  that  for  aliens  there  is  only  one 

unum    esse    dominium  ;    nam  ownership  and  only  one  owner  at 

aut  dominus  quisque   est,   aut  the  same  time  of  a  thing,  and  so 

.dominus  non  intellegitur.    quo  it  was  in  ancient  times  with  the 

iure   etiam   populus°  Romanus  people  of  Rome,  for  a  man  had 


II.  §§40-61.] 


DE  VSVCAPIONIBVS 


147 


olim  utebatur :  aut  enim  ex 
iure  Qmritium  unusquisque 
dominus  erat,  aut  non  intelle- 
gebatur  dominus.  sed  postea 
diuisionem  accepit  dominium, 
ut  alius  possit  esse  ex  iure 
Quiritium  dominus,  alius  in 
bonis  habere. 

§  41.  Nam  si  tibi  rem  man- 
cipi  neque  mancipauero  neque 
in  iure  cessero,  sed  tan  turn 
tradidero,  in  bonis  quidein  tuis 
ea  res  efficitur,  ex  iure  Quiri- 
tium uero  mea  permanebit, 
donee  tu  earn  possidendo  usu- 
capias ;  semel  enim  inpleta 
usucapione  proinde  pleno  iure 
incipit,  id  est  et  in  bonis  et  ex 
iure  Quiritium  tua  res  esse,  ac 
si  ea  mancipata  uel  in  iure 
cessa  (esset. 

§  42.  Vsucapio  antem)  mo- 
bilium  quidem  rerum  anno 
conpletur,  fundi  uero  et  aedium 
biennio ;  et  ita  lege  xn  tabu- 
larum  cautum  est. 

Inst.  2,  6  pr. 

§  43.  Ceter%m  etiam  earum 
rerum  usucapio  nobis  conpetit, 
quae  non  a  domino  nobis  tra- 
ditae  fuerint,  siue  mancipi  sint 
eae  res  siue  nee  mancipi,  si 
modo  eas  bona  fide  acceperi- 
mus,  cum  crederemus  eum  qui 
traderet  dominum  esse. 

§  44.  Quod  ideo  receptum 
uidetur,  ne  rerum  dominia  diu- 
tius  in  incerto  essent,  cum  suf- 
ficeret  domino  ad  inquirendam 
rem  suam  anni  aut  biennii 
spatium,  quod  tempus  ad  usu- 
capionem  possessor!  tributum 
est.  Inst.  1.  c. 


either  quiritary  dominion  or  none 
at  all.  They  afterwards  decom- 
posed dominion  so  that  one  person 
might  have  quiritary  ownership 
of  an  object  of  which  another 
person  had  bonitary  ownership. 


§  41.  For  if  a  mancipable  thing 
is  neither  mancipated  nor  surren- 
dered before  a  magistrate  but 
simply  delivered  to  a  person,  the 
bonitary  ownership  passes  to  the 
alienee,  but  the  quiritary  owner- 
ship remains  in  the  alienor  until 
the  alienee  acquires  it  by  usu- 
capion  ;  for  as  soon  as  usucapion 
is  completed,  plenary  dominion, 
that  is,  the  union  of  bonitary 
and  quiritary  ownership,  vests  in 
the  alienee  just  as  if  he  had  ac- 
quired the  thing  by  mancipation 
or  surrender  before  a  magistrate. 

§  42.  Usucapion  of  movables 
requires  a  year's  possession  for 
its  completion,  of  land  and  houses, 
two  years' possession,  a  rule  which 
dates  from  the  law  of  the  Twelve 
Tables. 

§  43.  Quiritary  ownership  of  a 
thing  may  also  be  acquired  by 
usucapion,  when  possession  of  it 
has  been  transferred  to  one  by  a 
person  who  is  not  the  owner  of 
it,  and  this  is  the  case  in  things 
either  mancipable  or  not  mancip- 
able, if  they  are  received  in  good 
faith  by  a  person  'who  believes 
the  deliverer  to  be  owner  of  them. 

§  44.  The  reason  of  the  law 
appears  to  be  the  inexpediency  of 
allowing  ownership  to  be  long 
unascertained,  the  previous  owner 
having  had  ample  time  to  look 
after  his  property  in  the  year  or 
two  years  which  must  elapse 
before  usucapion  is  complete. 


^45.  Sed  aliquando  etiamsi          §  45.  Some    things,    however, 
maxime  quis  bona  fide  alienam      notwithstanding  the  utmost  good 


L  a 


148      DE  ADQVIRENDO  RERVM  DOMINIO     [n.  §§  40-61. 


rem  possideat.  non  tamen  ilK 
usucapio  procedit,  uelut  si  quis 
rem  furtiuam  aut  ui  possessam 
possideat;  nam  furtiuam  lex 
xii  tabularum  usucapi  prohibet, 
ui  possessam  lex  lulia  et  Plau- 
tia.  Inst.  2, 6, 1. 

§  46.  Item  prouincialia  prae- 
dia  usucapioftem  non  recipiunt. 

§  47.  (Item  olim)  mulieris, 
quae  in  agnatorum  tutela  erat, 
res  mancipi  usucapi  non  pote- 
rant,  praeterquam  si  ab  ipsa 
tutore  (auctore)  traditae  es- 
sent ;  idque  ita  lege  xn  tabu- 
larum cautum  erat. 

§  48.  Item  liberos  homines 
et  res  sacras  et  religiosas  usu- 
capi non  posse  manifestum  est. 
(§  49.  Quod  ergo  uulgo  dici- 
tur  furtiuarum  rerum  et  ui 
possessarum  usucapionem  per 
legem  xii  tabularum  problbi- 
tam  esse,  non  eo  pertinet,  ut  ne 
ipse  fur  quiue  per  uim  possidet 
usucapere  possit(nam  huic  alia 
ratione  usucapio  non  conpetit, 
quia  scilicet  mala  fide  possidet) ; 
sed  nee  ullus  alius,  quamquam 
ab  eo  bona  fide  ernerit,  usuca- 
piendi  ius  habeat. 

Inst.  2,6,3. 

§  50.  Vnde  in  rebus  mobi- 
libus  non  facile  procedit,  ut 
'bonae  fidei  possessor i  usucapio 
ccwpetat,  quia  qui  alienam  rem 
uendidit  et  tradidit  furtum 
committit ;  idemque  accidit 
etiam  si  ex  alia  causa  tradatur. 
sed  tamen  hoc  aliquando  aliter 
se  habet ;  nam  si  heres  rem  de- 
functo  commodatam  aut  loca- 
tam  uel  apud  eum  depositam 
existimans  earn  esse  heredita- 
riam  uendiderit  aut  donauerit, 


faith  of  the  possessor,  cannot  be 
acquired  by  usucapion,  things, 
for  instance,  which  have  been 
stolen  or  violently  possessed, 
stolen  things  being  declared  in- 
capable of  usucapion  by  the  law 
of  the  Twelve  Tables,  and  things 
violently  possessed  by  the  lex 
Julia  and  Plautia. 

§46.  So,too,provinciallandand 
houses  are  incapable  of  usucapion. 

§  47.  Formerly,  when  a  woman 
was  under  her  agnate's  guardian- 
ship, her  mancipable  things  were 
not  subject  to  usucapion,  unless 
she  herself  delivered  possession 
of  them  with  her  guardian's 
sanction,  and  this  was  an  ordi- 
nance of  the  Twelve  Tables. 

§  48.  Free  men,  also,  and  things 
sacred  or  religious,  are  obviously 
not  susceptible  of  usucapion. 

§  49.  The  common  statement 
that  in  things  stolen  or  violently 
possessed,  usucapion  is  barred 
by  the  law  of  the  Twelve  Tables, 
means,  not  that  the  thief  or  vio- 
lent dispossessor  is  incapable  of 
acquiring  by  usucapion,  for  he  is 
barred  by  another  cause,  his  want 
of  good  faith ;  but  that  even  a 
person  who  purchases  in  good 
faith  from  him  is  incapable  of 
acquiring  by  usucapion. 


§  50.  Accordingly,  in  things 
movable  a  possessor  in  good  faith 
cannot  easily  acquire  ownership  by 
usucapion,  because  he  that  sells 
and  delivers  possession  of  a  thing 
belonging  to  another  is  guilty  of 
theft.  However,  sometimes  this 
is  otherwise,  for  an  heir  who  be- 
lieves a  thing  lent  or  let  to,  or 
deposited  with,  the  deceased  to  be 
a  portion  of  the  inheritance,  and 
sells  it  or  gives  it  away,  is  not 
guilty  of  theft :  again,  the  usu- 
fructuary of  a  female  slave  who 


n.  §§  40-61.] 


DE  VSVCAPIONIBVS 


149 


furtum  non  committit ;  item  si 
is,  ad  quern  ancillaeususfructus 
pertinet,  partum  etram  suum 
esse  credens  uendiderit  aut  do- 
nauerit,  furtum  non  committit ; 
/urtum  enim  sine  adfectu  fu- 
randi  non  committitur.  aliis 
quoque  modis  accidere  potest, 
ut  quis  sine  uitio  furti  rem 
alienam  ad  aliquem  transferat 
et  efficiat,  ut  a  possessore  usu- 
capiatur.  Inst.  2,  6,  3  and  4. 

§  51.  Fundi  quoque  alieni 
potest  aliquis  sine  ui  posses- 
sionem  nawcisci,  quae  uel  ex 
neglegentia  domini  uacet,  uel 
quia  dominus  sine  successore 
decesserit  uel  longo  tempore 
afuerit ;  qu&m  si  ad  alium  bona 
fide  accipientem  transtulerit, 
poterit  usucapere  possessor  ;  et 
quamuis  ipse,  qui  uacantem 
possessionem  nactus  est,  intel- 
legat  alienum  esse  func^um,  ta- 
fiien  nihil  hoc  bonae  fidei  pos- 
sessor! ad  usucapionem  noce£, 
(citm)  inpro&ata  sit  eorum  sen- 
ientia,  qui  putauerint  fvrtiuum 
fund um  fieri  posse.  Inst.  2, 6, 7. 

§  52.  Rursus  ex  contrario  ac- 
cidit  ut  qui  sciat  alienam  rem 
se  possidere  usucapiat,  ueluti 
si  rem  hereditariam,  cuius  pos- 
sessionem heres  nondum  nactus 
est,  aliquis  possederit ;  nam  ei 
concessum  (est  usu)capere,  si 
modo  ea  res  est  quae  recipit 
usucapionem ;  quae  species  pos- 
sessionis  et  usucapionis  pro 
herede  uocatur. 

§  53.  Et  in  tantum  haec  usu- 
capio  concessa  est,  ut  et  res 
quae  solo  continentur  anno 
usucapiantur. 

§  54.  Quare  autem  hoc  casu 
etiavi  soli  rerum  annua  con- 
stituta  sit  usucapio,  ilia  ratio 


believes  her  offspring  to  be  his 
property  and  sells  it  or  gives  it 
away,  is  not  guilty  of  theft ;  for 
there  can  be  no  theft  without  un- 
lawful intention :  and  similarly 
other  circumstances  may  prevent 
the  taint  of  theft  from  attaching 
to  the  delivery  of  a  thing  belong- 
ing to  another,  and  enable  the 
receiver  to  acquire  by  usucapion. 


§51.  Possession  of  land  belong- 
ing to  another  may  be  acquired 
without  violence,  when  vacant  by 
neglect  of  the  owner,  or  by  his 
death  without  leaving  a  suc- 
cessor, or  his  long  absence  from 
the  countiy,  and  an  innocent 
person  to  whom  the  possession 
is  transferred  may  acquire  the 
property  by  usucapion;  for  though 
the  original  seizer  of  the  vacant 
possession  knew  that  the  land 
belongs  to  another,  yet  his  know- 
ledge is  no  bar  to  the  usucapion 
of  the  innocent  alienee,  as  it  is 
no  longer  held  that  theft  can  be 
committed  of  land. 

§  52.  On  the  other  hand,  know- 
ledge that  one  is  acquiring  pos- 
session of  another  person's  pro- 
perty (mala  fides)  does  not  al- 
ways prevent  usucapion,  for  any 
one  may  seize  a  portion  of  an 
inheritance  of  which  the  heir  has 
not  yet  taken  possession  and 
acquire  it  by  usucapion,  provided 
it  is  susceptible  of  usucapion,  and 
he  is  said  to  acquire  by  title  of 
quasi  heir. 

§  53.  With  such  facility  is  this 
usucapion  permitted  that  even 
land  may  be  thus  acquired  in  a 
year. 

§  54.  The  reason  why  even  land 
in  these  circumstances  demands 
only  a  year  for  usucapion  is,  that 


150      DE  ADQVIRENDO  RERVM  DOMINIO      [n.  §§  40-61. 


est,  quod  olim  rerum  heredita- 
riarum  possessions  uelvt  ipsae 
hereditates  usucapi  credeban- 
tur,  scilicet  anno,  lex  enim 
xn  tabularum  soli  quidem  res 
biennio  usucapi  iussit,  ceteras 
uero  anno,  ergo  hereditas  in 
ceteris  rebus  uidebatur  esse, 
quia  soli  non  est  quia  neque 
corporalis  est.  (et}  quamuis 
postea  creditum  sit  ipsas  here- 
ditates usucapi  non  posse,  ta- 
men  in  omnibus  rebus  beredi- 
tariis,  etiam  quae  solo  tenentur, 
annua  usucapio  remansit. 


§  55.  Quare  autem  omnino 
tarn  inproba  possessio  et  usu- 
capio concessa  sit,  ilia  ratio  est, 
quod  uoluerunt  ueteres  matu- 
rius  hereditates  adiri,  ut  essent 
qui  sacra  facerent,  quorum  illis 
temporibus  sujnina  obseruatip 
fait,  et  ut  creditores  haberent 
a  quo  suum  consequerentur. 

§  56.  Haec  autem  species 
possessionis  et  usucapionis 
etiam  lucratiua  uocatur ;  nam 
sciens  quisque  rem  alienam 
lucri  facit. 

§  57.  Sed  hoc  tempore  mm 
non  est  luoratiua.  nam  ex 
auctoritate  Hadriani  senatus- 
consultum  factum  est  u^  tales 
usucapione$  reuocarentur.  et 
ideo  potest  heres  ab  eo  qui  rem 
usucepit  hereditateni  petendo 
proinde  earn  rem  consequi, 
atque  si  usucapta  non  essei. 

§  58.  Necessario  tamen  herede 
extante  nihil  ipso  iure  pro 
herede  usucapi  potest. 


in  ancient  times  the  possession 
of  property  belonging  to  the  in- 
heritance was  held  to  be  a 
means  of  acquiring  the  inheri- 
tance itself,  and  that  in  a  year : 
for  while  the  law  of  the  Twelve 
Tables  fixed  two  years  for  the 
usucapion  of  land  and  one  year 
for  the  usucapion  of  other  things, 
an  inheritance  was  held  to  fall 
under  the  category  of  '  other 
things,'  as  it  is  neither  land  nor 
corporeal :  and  though  it  was 
afterwards  held  that  the  inheri- 
tance itself  was  not  acquirable  by 
usucapion,  yet  the  property  be- 
longing to  the  inheritance,  includ- 
ing land,  continued  acquirable  by 
a  year's  possession. 

§  55.  The  motive  for  permitting 
at  all  so  unscrupulous  an  acqui- 
sition was  the  wish  of  the  ancient 
lawyers  to  accelerate  the  accept- 
ance of  inheritances,  and  thus  pro- 
vide persons  to  perform  the  sacred 
rites,  to  which  in  those  days  the 
highest  importance  was  attached, 
and  also  to  secure  some  one  from 
whom  creditors  might  obtain 
satisfaction  of  their  claims. 

§  56.  This  mode  of  acquisition 
is  sometimes  called  lucrative  usu- 
capion, for  the  possessor  know- 
ingly acquires  the  benefit  of 
another's  property. 

§  57.  In  the  present  day,  how- 
ever, this  kind  of  usucapion  is 
not  lucrative,  for  the  Senate  on 
the  motion  of  Hadrian  decreed 
that  such  usucapions  are  re- 
vocable, and  accordingly  where 
a  person  thus  acquired  a  thing  by 
usucapion,  the  heir  can  sue  him 
by  hereditatis  petitio  and  recover 
the  thing  just  as  if  the  usuca- 
pion had  never  been  completed. 

§  58.  The  existence  of  a  neces- 
sary heir  excludes  ipso  jure  the 
operation  of  this  kind  of  usuca- 
pion. 


ii.  §§  40-61.] 


DE  VSVCAPIONIBVS 


151 


§  59.  There  are  other  condi- 
tions under  which  a  knowledge 
of  another's  ownership  is  no  bar 
to  usucapion.  After  a  fiduciary 
mancipation  or  surrender  before 
a  magistrate  of  his  property,  if 
the  owner  himself  should  become 
possessed  of  it,  he  recovers  his 
ownership  even  over  land  in  the 
period  of  a  year,  by  what  is  called 
usureception  or  a  recovery  by 
possession,  because  a  previous 
ownership  is  thereby  recovered 
by  usucapion. 

§  60.  The  fiduciary  alienee  is 
either  a  creditor  holding  the 
property  as  a  pledge  or  a  friend 
to  whom  the  property  is  made 
over  for  safe  custody :  in  the 
latter  case  the  ownership  is  always 
capable  of  usureception :  but  in 
that  of  a  creditor,  though  the 
owner  can  always  thus  re-acquire 
after  payment  of  the  debt,  before 
payment  of  the  debt  he  can  only 
re-acquire  provided  he  has  not 
obtained  the  thing  of  his  creditor 
on  hire  or  got  possession  of  it 
by  request  and  licence  ;  in  this 
case  he  re-acquires  by  a  lucrative 
usucapion. 

§  61.  Again,  the  owner  of  a 
thing  mortgaged  to  the  people  and 
sold  for  non-payment  of  the  mort- 
gage debt  may  re-acquire  it  by 
possession,  but  in  this  case,  if  it 
is  land,  usucapion  is  biennial : 
and  this  is  the  meaning  of  the 
saying,  that  after  praediatura  (a 
public  sale)  land  is  recoverable 
by  (biennial)  possession,  a  pur- 
chaser from  the  people  being  called 
praediator. 

§§  40,  41.  Roman  law  originally  only  recognized  one  kind  of 
ownership,  called  emphatically,  quiritary  ownership.  Gradually, 
however,  certain  kinds  of  ownership  were  recognized  which,  though 
they  failed  to  satisfy  all  the  elements  of  the  definition  of  quiritary 
dominion,  were  practically  its  equivalent,  and  received  from  the 
courts  a  similar  protection.  These  kinds  of  ownership  might  fall 


§  59.  Adhuc  etiam  ex  aliis 
causis  sciens  quisque  rem  alie- 
nam  usucapit.  cam  qui  rem 
alicui  fiduciae  causa  manciple 
dederit  uel  in  iure  cesserit,  si 
eandem  ipse  possederit,  potest 
usucapere,  anno  scilicet, 
{etiam}  soli  si  sit.  quae  spe- 
cies usucapionis  dicitur  usure- 
ceptio,  quia  id  quod  aliquando 
habuimus  recipimus  per  usu- 
capionem. 

§  60.  Sec?  fiducia  contrahitur 
aut  cum  creditore  pignoris  iure, 
aut  cum  amico,  quo  tutius  no- 
strae  res  apud  eum  sint ;  et 
siquidem  cum  amico  contracta 
sit  fiducia,  sane  omni  modo 
conpetit  ususreceptio  ;  si  uero 
cum  creditore,  soluta  quidem 
pecunia  omni  modo  conpetit, 
nondum  uero  soluta  ita  demum 
conpetit,  si  neque  conduxerit 
earn  rem  a  creditore  debitor, 
neque  precario  rogauerit,  ut 
earn  rem  possidere  liceret;  quo 
casu  lucratiua  ususcapio  con- 
petit. 

§  61.  Item  si  rem  obligatam 
sibi  populus  uendiderit  eamque 
dominus  possederit,  concessa 
est  ususreceptio ;  sed  hoc  casu 
praedium  biennio  usurecipitur. 
et  hoc  est  quod  uulgo  dicitur 
ex  praediatura  possessionem 
usurecipi ;  nam  qui  mercatur 
a  populo  praediator  appel- 


152       DE  ADQVIRENDO  RERVM  DOMINIO     [n.  §§40-61. 

short  of  quiritary  ownership  in  three  respects,  (i)  either  in  respect 
of  the  persons  in  whom  they  resided,  (2)  or  of  the  objects  to 
which  they  related,  (3)  or  of  the  title  by  which  they  were 
acquired. 

(1)  To  be  capable  of  quiritary  ownership  a  man  must  have  one 
of    the    elements   of   Roman    citizenship.      Jus    quiritium,    right 
quiritary,    sometimes,    indeed,   denotes  all  the  elements  of  civitas 
Romana,  Roman  citizenship  (1  §§  28,  35,  comm.).     Beneficio  princi- 
pal!   Latinus   civitatem    Romanam    accipit   si    ab    imperatore    jus 
quiritium   impetraverit,   Ulpian    3,    2.      But   the   only   element   of 
citizenship  required  for  quiritary  ownership  was  commercium,  and 
as   we   have   seen  that  the   Latinus   possessed    commercium  with- 
out  connubium,   the   Latinus  was  capable   of  quiritary  dominion. 
The  alien  (peregrinus)  on  the  contrary  was   incapable,   except  by 
special  privilege :  yet  he  might  have  ownership,  which  he  acquired 
by  titles  of  jus  gentium,  e.  g.  tradition,  occupation,  accession,  &c., 
and  could  maintain  by  a  real  action  in  the  court  of  the  praetor 
peregrinus  or  praeses  provinciae. 

(2)  Provincial    land    was    not    capable   of  quiritary   ownership. 
Originally,  indeed,  private  ownership  appears  to  have  been  confined 
to  things  capable  of  being  taken  by  the  hand  (mancipatae),  that  is 
to  movables ;  and  lands  were  only  subject  to  public  dominion  or 
were  the  common  property  of  the  gens.    Private  ownership,  however, 
first   invaded   a  portion   of  the   land,  the  heredium,  or  hereditary 
homestead  of  the  gentilis,  and  finally  became  a  general  institution  ; 
and  ager  publicus,  as  opposed  to  ager  privatus,  almost   ceased   to 
exist  on  Italian  soil.     But  in  the  provinces  subsequently  conquered, 
land  continued  to  the  end  subject  exclusively  to  public  dominion  ; 
and  thus  one  of  the  essential  features  of  feudal  tenure,  the  exclusive 
vesting  of  absolute  or  ultimate  dominion  over  land  in  the  sovereign 
as  overlord,  a  principle  commonly  supposed  to  have  been  first  intro- 
duced into  Europe  by  the   invading   German  hordes,  had  already 
existed,  though  in  a  different  form,  over  by  far  the  greater  portion 
of  the  Roman  world.     It  is  true  that  the  provinces  were  divided  into 
private  possessions  and  public  domains ;  but  private  possessions  as 
well  as  public  domains  were  subject  to  a  vectigal,  and  the  tenants  of 
the  one  and  lessees  of  the  other  were  equally  devoid   of  absolute 
ownership.     Rights  over  solum  provinciale  of  a  more  or  less  limited 
kind  were  however  acquirable,  though  not  by  titles  of  jus  civile,  and 
recoverable  by  real  action,  for  which  Gaius  uses  the  terms  possessio 
and  ususfructus,  §  7. 

(3)  Bonitary  ownership  was  distinct  both  from  an  alien's  ownership 
and  from  rights  over  provincial  land  :    it  may  be  defined  as  the 
property   of   a    Roman   citizen   in   a  subject   capable   of  quiritary 


ii.  §§40-61.]  DE  VSVCAPIONIBVS  153 

ownership,  acquired  in  a  way  not  known  to  the  jus  civile,  but 
introduced  by  the  praetor,  and  protected  by  his  imperium  or 
executive  power.  We  have  seen,  for  instance,  that  only  non-man- 
cipable  things  were  capable  of  transfer  by  tradition  ;  suppose,  now, 
that  a  mancipable  thing  were  conveyed  by  the  owner  to  a  vendee 
by  tradition ;  the  process  would  not  make  him  quiritary  owner ; 
he  would  be  no  better  than  a  bona  fide  possessor,  until  by  the 
lapse  of  a  year  or  of  two  years  he  acquired  quiritary  ownership  by 
usucapion.  The  praetor,  however,  assisted  the  less  cumbrous  mode 
of  alienation  by  treating  the  vendee  as  if  he  were  owner  ;  by  giving 
him,  if  in  possession,  the  exceptio  rei  venditae  et  traditae  or  plea 
of  sale  and  delivery  against  the  vendor  who  sought  to  recover  as 
quiritary  owner,  and  enabling  the  vendee,  if  dispossessed,  to  recover 
against  the  quiritary  owner  as  well  as  against  any  third  person  by 
utilis  vindicatio,  called  actio  Publiciana,  in  which  he  would  meet  the 
plea  of  quiritary  ownership  (exceptio  dominii)  by  the  replicatio  rei 
venditae  et  traditae  or  by  the  replicatio  doli,  a  replication  which  could 
not  be  used  by  a  mere  bona  fide  possessor.  Bonitary  ownership,  or 
ownership  established  by  the  praetor,  when  once  invented,  was 
employed  by  the  praetor  in  other  innovations,  which  he  introduced, 
namely,  as  we  shall  see  hereafter,  in  respect  of  res  corporales  of  an 
insolvent  debtor  transferred  to  a  purchaser  by  universal  succession 
(bonorum  venditio),  and  in  respect  of  his  testamentary  and  intestate 
succession  (bonorum  possessio) :  3  §  80. 

The  barbarous  term  Bonitary  (formed  from  the  classical  in  bonis 
esse,  in  bonis  habere)  has  the  authority  of  Theophilus,  who  speaks 
of  Sfo-norrjs  ftuvirdpios,  1,  5,  4  ;  he  also  calls  bonitary  ownership  natural 
dominion  ((frwiKri  bf<rnoT(ia),  as  opposed  to  statutory,  civil,  or  quiri- 
tary dominion  ((wopos  deo-TroTem). 

Actio  Publiciana  was  not  only  the  remedy  of  the  bonitary  owner, 
but  was  also  applicable  on  the  alienation  of  anything  whatever  by 
a  non -proprietor  to  an  innocent  alienee  (bona  fide  possessor)  in  case 
the  latter  lost  possession  of  it. 

Usucapion,  as  in  the  case  of  bonitary  ownership,  might  in  the  lapse 
of  time  have  given  the  bona  fide  possessor  plenary  dominion,  and,  with 
it,  vindication  in  the  event  of  a  loss  of  possession  ;  but  if  he  lost  pos- 
session whilst  usucapion  was  still  incomplete,  he  would  have  had  no 
real  action  (for,  not  being  owner,  he  could  not  vindicate),  if  the 
praetor  had  not  allowed  him  to  sue  by  the  actio  Publiciana,  which 
treated  bona  fide  possession,  that  is,  usucapion  possession,  or  the 
inception  of  usucapion,  as  if  it  were  plenary  dominion  in  respect  of 
every  one,  except  the  rightful  owner.  The  latter,  however,  could 
defend  himself  in  this  action  successfully  against  a  mere  bona  fide 
possessor  by  the  exceptio  dominii,  or  bring  a  vindication  against  a 


154      DE  ADQVIRENDO  RERVM  DOMINIO      [n.§§  40-61. 

bona  fide  possessor  who  retained  possession,  though,  as  we  have  seen, 
the  quiritary  owner  was  not  allowed  to  avail  himself  of  these  means 
of  protection  against  a  person  having  a  praetorian  or  bonitary  title  of 
ownership. 

§§  52-60.  An  heres  was  either  voluntarius,  empowered  to  accept 
or  reject  the  inheritance,  or  necessarius,  heir  as  matter  of  course, 
without  any  such  power  of  election.  A  voluntary  heir  was  either 
.in  agnate  entitled  to  succeed  an  intestate,  or  any  heir,  not  being 
a  suus  or  necessarius  heres  of  the  testator,  entitled  under  a  will.  A 
necessary  heir  was  either  a  slave  of  the  testator  manumitted  by  his 
will,  or  a  self-successor  (suus  heres),  that  is,  a  descendant  under  power 
of  the  testator  or  intestate,  made  independent  by  his  death,  §  152.  In 
every  case  of  voluntarius  heres,  so  long  as  the  heir  had  not  entered 
on  the  inheritance,  any  stranger  was  permitted  to  seize  parts  of  it 
and  acquire  property  therein  by  usucapion.  The  only  title  (causa, 
titulus)  required  for  this  acquisition  was  the  overture  or  delation  of  the 
inheritance  to  heres  and  vacancy  of  possession.  This  possession,  which 
Gaius  (§  52)  calls  pro  herede  (see  Dig.  5,  3,  9)  is  more  properly  called 
pro  possessore.  Cf.  4  §  144.  'Possessor,  as  possessor,  is  the  occupant, 
who,  asked  why  he  possesses,  answers,  "Because  I  possess,"  and 
does  not  claim  to  be  heir  even  mendaciously,  and  has  no  title  of 
possession  to  allege.'  But  according  to  early  Roman  law  any  person 
who  was  allowed  by  the  voluntary  heir  to  remain  in  possession  of 
the  inheritance  for  a  year  was  considered  lawfully  entitled  to  it  as 
heir,  bona  fides  on  the  part  of  a  possessor  being  at  this  time  im- 
material for  the  purpose  of  acquiring  by  usucapion  (Muirhead, 
Roman  Law,  §  32).  The  senatusconsultum  of  Hadrian,  referred  to 
in  the  text,  §  57,  did  not  prevent  the  usucapion,  but  made  it  nugatoiy 
by  allowing  the  heir  to  recover  the  hereditaments  by  real  action 
(hereditatis  petitio,  or  the  interdict  Quorum  bonorum,  4  §  144),  just 
as  if  the  usucapion  had  never  been  completed. 

Though  the  occupant  of  the  vacant  hereditament  was  called 
praedo,  his  possession,  being  encouraged  by  the  lawgiver,  was  not 
unlawful  until  restitution  was  claimed,  Savigny,  §  264.  This  pos- 
session is  probably  the  key  to  an  enigmatical  rule  in  Roman  law  : 
ipsum  sibi  causam  possessionis  mutare  non  posse,  Dig.  41,  3,  33,  1 ; 
causam  possessionis  neminem  sibi  mutare  posse,  Dig.  41,  5,  2,  1. 
'No  man  can  change  at  pleasure  his  title  of  possession.'  With  the 
intention,  it  may  be,  of  limiting  the  operation  of  possessio  pro 
herede,  an  anomalous  institution  of  questionable  expediency,  the  rule 
declares  that  a  person  who  commences  his  possession  of  a  thing 
in  the  character  of  a  vendee  from  a  non-proprietor,  or  holds  it  as 
lessee,  borrower,  depositary,  shall  not  be  able,  on  the  death  of  the 
true  proprietor,  to  accelerate  or  initiate  usucapion  by  merely  pro- 


ii.  §§40-61.]  DE  VSVCAPIONIBVS  155 

fessing  that  he  ceases  to  hold  in  his  former  character  and  proceeds 
to  hold  as  possessor  pro  herede  or  pro  possessore. 

Possessio  pro  herede  was  perhaps  the  germ  of  the  intestate  suc- 
cession of  next  of  kin  or  cognati,  a  succession,  as  we  shall  see,  not 
originally  recognized  in  Eomau  law  ;  at  least,  the  family  or  next  of 
kin  of  an  intestate  would  generally  have  the  best  chance  of  seizing 
any  movables  or  immovables  that  he  left ;  and  perhaps  it  was  this 
equitable  result,  no  less  than  the  object  mentioned  by  Gaius,  §  55, 
that,  in  the  absence  of  a  regular  succession  of  cognati,  led  the  public  to 
look  on  possessio  pro  possessore  as  a  rational  and  salutary  institution. 

The  senatuseonsultum  mentioned  in  the  text,  §  57,  is  supposed  by 
some  commentators  to  be  the  same  as  one  mentioned  in  the  Digest 
(5,  3,  6),  as  having  been  passed  at  the  instance  of  the  Emperor 
Hadrian,  when  Q.  Julius  Balbus  and  P.  Juventius  Celsus  were 
consuls,  A.  r>.  129 — hence  called  Sc.  Juventianum.  The  institution 
of  usucapio  pro  herede  and  pro  possessore,  or  rather  the  senatus- 
eonsultum by  which  it  was  defeated,  has  left  its  traces  in  the  formula, 
still  to  be  found  in  the  Digest,  of  the  interdict  Quorum  bonorum, 
a  remedy  whereby  a  person  who  claimed  either  as  civil  heir  (heres), 
or  as  praetorian  heir  (bonorum  possessor),  established  his  claim  to 
succeed  and  recovered  possession  of  the  things  belonging  to  the 
inheritance.  See  4  §  144.  To  leave  these  traces  in  the  wording 
of  the  interdict  was  according  to  Vangerow  no  oversight  on  the 
part  of  Justinian,  as  although  in  his  legislation  the  last  remnants 
of  the  institution  of  usucapio  pro  possessore,  that  is  by  a  mala  fide 
possessor,  had  been  definitely  abolished ;  yet  usucapio  pro  herede,  that 
is,  by  a  bona  fide  possessor,  or  one  who  sincerely  though  mistakenly 
held  himself  to  be  heir,  was  still  recognized  by  jurisprudence,  §  320. 

§  60.  For  fiducia  cum  creditore  see  1  §  114,  comm.,  3  §§  90,  91, 
comm.  Mancipation  to  a  friend  on  trust  for  safe  custody  must  have 
been  the  earliest  legal  form  of  deposit,  as  mancipation  to  a  creditor 
on  trust  to  reconvey  was  the  earliest  mode  of  pledge  or  mortgage. 
For  precarium  see  4  §§  138-170,  comm. 

§  61.  The  circumstances  contemplated  seem  to  be  as  follows: 
A  proprietor  is  debtor  to  the  Roman  people  or  state,  and  his  lands 
are  mortgaged  as  security  for  the  debt.  On  default  of  payment,  the 
state  exercises  the  power  of  sale :  if  the  debtor  is  not  turned  out  of 
possession  by  the  purchaser  (praediator)  in  two  years  he  recovers  his 
proprietorship  by  usureception.  It  seems  that  the  sale  by  the  people 
was  merely  the  transfer  of  the  mortgage ;  so  that,  if  the  debtor 
afterwards  satisfied  the  purchaser,  he  recovered  his  land.  Kuntze, 
Excursus  des  Rom.  Rechts,  436. 

Provincial  lands  were  not  subject  to  Usucapion  ;  but  a  possessor 
for  ten  years  during  the  presence  of  the  owner  in  the  same  province 


156      DE  ADQVIRENDO  RERVM  DOMINIO      [n.§§  40-61. 

(inter  praesentes),  or  for  twenty  years  in  his  absence  (inter  absentes), 
if  he  satisfied  the  conditions  of  usucapion,  had,  according  to  the 
provincial  edict,  the  plea  called  longi  temporis  praescriptio  against 
any  action  brought  by  the  owner  for  recovery,  and  subsequently  was 
himself  allowed  to  recover  the  land,  as  if  he  were  owner  of  it,  so 
that  longi  temporis  possessio  became  in  later  Roman  law  not  simply 
a  limitation  of  the  right  of  action,  but  a  positive  title  analogous  to 
usucapion. 

Usucapion  required  something  beyond  mere  possession  for  a  cer- 
tain period  ;  and  something  beyond  what  we  hereafter  call  Interdict 
possession,  4  §§  138-170.  The  conditions  of  possession  which  entitled 
a  possessor  to  appeal  for  the  protection  of  his  possession  to  the 
praetor's  interdict  were  merely  that  he  should  have  de  facto  control 
of  the  property,  as  if  he  were  owner  of  it,  all  question  of  right  or 
title  being  immaterial :  nor  was  a  mala  fide  any  more  than  a  bona 
fide  possessor  excluded  from  this  protection,  unless  he  had  obtained 
possession  from  the  other  party  to  the  interdict  by  means  of  violence 
(vi),  or  clandestinely  (clam),  or  by  his  pel-mission  (precario).  But  to 
produce  Usucapion  (i)  the  person  and  thing  to  be  acquired  must  be, 
capable  of  quiritary  ownership,  and  (2)  it  must  not  have  been  taken 
by  any  one's  theft  or  violence  from  the  former  owner,  §  49 :  so  that 
land  not  being  subject  to  furtum  was  more  easily  acquired  by 
usucapion  than  movable  property,  §  50  ;  (3)  the  possession  of  the 
usucapient  must  be  based  on  a  justa  causa  or  titulus,  a  ground  of 
acquiring  ownership,  such  as  tradition  or  bequest ;  (4)  and  com- 
menced with  bona  fides  on  his  part,  a  condition  which  appears  to 
have  been  annexed  to  the  law  of  the  Twelve  Tables  by  the  inter- 
pretation of  the  prudentes.  Bona  fides,  in  the  case  of  titulus  of 
occupancy,  which  is  an  original  mode  of  acquisition,  e.g.  usucapio 
pro  derelicto,  is  a  mistaken  belief  that  the  thing  is  res  nullius, 
has  no  proprietor.  In  the  case  of  derivative  acquisition  it  is  the 
belief  that  the  auctor,  or  person  from  whom  the  thing  is  derived,  is 
either  owner  or,  if  not  owner,  has  a  power  of  disposition  as  agent, 
guardian,  mortgagee,  or  otherwise.  Vangerow,  §  321.  The  Canon 
law  requires  during  the  whole  period  of  such  prescription  the  bona 
fides  which  the  Civil  law  only  requires  at  the  inception. 

Justinian  remodelled  the  law  of  Usucapion,  combining  it  with  longi 
temporis  possessio.  Cf.  Inst.  2,  6.  For  movables  he  extended- the 
period  from  one  year  to  three  years :  for  immovables  he  abolished  the 
distinction  between  Italian  and  provincial  land,  and  required  ten 
years'  possession  if  the  parties  were  domiciled  in  the  same  province, 
and  twenty  years'  possession  if  they  were  not  domiciled  in  the  same 
province.  Further,  he  introduced  a  new  usucapion  (longissimi  tem- 
poris praescriptio),  which  was  governed  by  less  stringent  conditions 


ii.  §§  40-61.]  DE  VSVCAPIONIBVS  157 

than  the  ordinary  usucapion  (longi  temporis  praescriptio).  It  applied 
both  to  movables  and  immovables,  was  not  vitiated  by  certain  flaws 
in  the  subject  (res  furtiva,  vi  possessa),  and  needed  no  support  of 
any  titulus,  but  only  required  bona  fides  in  its  inception  on  the 
part  of  the  possessor,  Cod.  7,  39,  8.  It  was  completed  in  thirty 
years. 

Usucapion,  particularly  in  this  its  later  form,  requires  to  be  care- 
fully distinguished  from  the  Limitation  of  actions  (temporalis  prae- 
scriptio) with  which  it  has  been  co-ordinated  by  some  civilians  under 
the  name  of  Acquisitive,  as  opposed  to  Extinctive,  Prescription.  We 
shall  see,  4  §  110,  that  all  actions  were  originally  divided  into  tem- 
porales  and  perpetuae,  temporales  being  such  as  could  only  be  brought 
within  a  certain  period  (e.g.  in  the  case  of  praetorian  actions,  a  year) 
from  the  time  when  the  right  of  action  accrued,  perpetuae  such  as 
were  subject  to  no  such  limitation.  Subsequently,  however,  even 
the  latter  were  limited,  and  no  action  could  be  brought  after  thirty 
years  from  the  nativity  of  the  action  or  the  time  when  the  right  of 
action  accrued  (actio  nata),  Inst.  4,  12  pr.  In  the  case  of  personal 
actions  there  is  no  danger  of  confusing  Usucapion  and  Limitation. 
Usucapion  implies  possession,  and  in  the  case  of  personal  actions, 
or  jus  in  personam,  no  such  thing  as  possession  is  conceivable, 
for  possession  only  relates  to  res  corporales.  Usucapion  and 
the  Limitation  of  real  actions  are  more  similar,  but  even  here  a 
distinction  may  be  recognized.  Limitation  is  the  extinction  of  a 
right  by  neglect  of  the  person  entitled,  by  his  omission  to  enforce 
his  remedy :  Usucapion  is  the  acquisition  of  a  right  by  something 
positive  on  the  part  of  the  acquirer,  his  strictly  denned  possession 
for  a  certain  time.  Even  extraordinary  acquisitive-  prescription 
requires,  as  we  have  seen,  bona  fides  in  the  commencement  of  pos- 
session :  no  such  condition  is  attached  to  Limitation  or  extinctive 
prescription. 

English  law  originally  only  recognized  acquisitive  prescription  in  the 
case  of  easements  and  profits,  e.  g.  rights  of  way ;  for  the  acquisition  of 
which  the  Prescription  Act,  2  and  3  Will.  4,  c.  71,  requires  possession 
for  a  fixed  period.  Moreover,  since  the  Act  for  the  limitation  of  real 
actions,  3  and  4  Will.  4,  c.  27,  deprives  a  proprietor  of  land  of  his 
right  as  well  as  his  remedy  if  he  omit  to  bring  his  action  to  recover 
it  within  twenty  years  after  the  right  accrued  (a  limit  which  by  the 
37  and  38  Viet.  c.  57  was  reduced  to  twelve  years),  the  principle  of 
Usucapion  (Acquisitive  prescription)  in  corporeal  as  well  as  incor- 
poreal hereditaments  may  be  said  to  be  now  recognized  in  English 
real  property  law,  though  not  very  distinctly. 

Besides  the  civil  titles  which  we  have  examined,  two  others  are 
mentioned  by  Ulpian :  Singularum  rerum  dominia  nobis  adquiruntur 


158      DE  ADQVIRENDO  RERVM  DOMINIO      [n.  §§  40-61. 

mancipatione,  traditione,  in  jure  cessione,  usucapione,  adjudicatione, 
lege,  19,  2. 

Adjudication  (for  the  nature  of  which  see  4  §  42),  whereby  pro- 
perty might  be  taken  from  one  individual  and  vested  in  another 
without  any  of  the  ordinary  methods  of  conveyance,  as  in  the 
case  of  the  award  of  a  judex  in  a  partition  suit,  may  be  com- 
pared in  its  operation  to  the  vesting  orders  made  by  the  Court  of 
Chancery  under  the  Trustee  Acts.  When  trustees  are  disabled  by 
lunacy  or  infancy  from  dealing  with  the  estates  vested  in  them,  the 
Court  of  Chancery  is  empowered  to  make  orders  the  effect  of  which 
is  that  the  estate  becomes  immediately  vested  in  the  substituted 
trustees  as  effectually  as  if  a  conveyance  had  been  duly  made  by  the 
person  previously  entitled  to  the  legal  estate.  Another  parallel  is  to 
be  found  in  the  awards  of  certain  commissioners  acting  under  powers 
given  by  act  of  parliament.  Thus  the  order  of  the  Inelosure  com- 
missioners for  exchange  and  partition  of  land  closely  resembles  in 
subject  and  effect  the  adjudicatio  of  a  judex  n  the  actio  finium 
regundorum. 

Lex  is  an  ambiguous  and  miscellaneous  title.  It  is  said  to  include 
title  by  caducity  (caducum)  under  the  lex  Papia  Poppaea,  and  bequest 
or  legacy  (legatum),  a  title  deriving  its  validity  from  the  lex  of  the 
Twelve  Tables,  Ulpian,  19,  17.  Extending  our  view  from  res 
singulae,  to  which  Ulpian  confines  himself,  to  universitates,  lex 
was  an  apt  denomination  of  title  by  will  at  the  period  when  wills 
required  the  ratification  of  the  Cornitia  Calata,  2  §  101,  as  at  that 
time  testamentary  dispositions  were  really  acts  of  the  legislature. 
Title  by  lex  in  this  case  bears  some  kind  of  analogy  to  conveyances 
by  private  act  of  parliament  in  English  jurisprudence. 

It  may  assist  to  clear  our  conception  of  title  if  we  observe  that 
the  title  'Lege'  is  ambiguous,  and  that  (i)  while  one  of  its  mean- 
ings implies  an  absence  of  all  title,  (2)  another  denotes  a  miscella- 
neous group  of  heterogeneous  titles. 

(i)  The  only  case  in  which  Law  can  be  said  in  any  distinctive 
sense  to  be  a  cause  of  acquisition  is  privilegium  or  private  law. 
The  acquisition  of  a  right  by  immediate  grant  from  the  sovereign 
(private  act  of  the  legislature,  private  act  of  parliament)  is  unlike 
the  acquisition  of  a  person  entitled  under  some  general  disposition 
of  a  universal  law.  Acquisition  by  bequest  or  escheat  is  not  an 
acquisition  by  law  in  any  pre-eminent  manner,  but  only  in  the  same 
degree  as  is  acquisition  by  mancipation  or  usucapion  or  any  other 
title,  for  all  these  acquisitions  are  equally  founded  on  law  or  some  legal 
disposition  of  general  application.  But  in  acquisition  by  privilegium 
there  is,  in  this  sense,  neither  title  nor  any  general  law.  By  a  general 
law  is  meant  a  universal  proposition,  annexing  a  right  or  duty  to 


ii.  §§  65-79.]  ADQVISITIONES  DOMINII  NATVRALES   159 

a  title :  it  knows  nothing  of  individual  persons,  but  stops  short 
at  classes  of  persons,  classes,  that  is,  defined  by  the  title.  Again, 
title  is,  properly  speaking,  a  contingent  fact  distinct  from  a  corre- 
sponding law :  a  fact  which  may  occur  an  indefinite  number  of 
times,  and  entitle,  that  is,  invest  with  rights  or  duties,  an  indefinite 
number  of  persons,  in  accordance  with  the  dispositions  of  one  and 
the  same  unchanging  law.  Title,  loosely  and  inaccurately  defined 
as  a  fact  investing  a  person  with  a  right,  would  include  a  privilege, 
i.  e.  a  law  conferring  a  right  immediately  on  a  given  individual 
without  the  intervention  of  a  fact  distinguishable  from  the  law  ; 
but  title,  properly  defined  as  an  intervening  fact  through  which 
a  law  confers  a  right  mediatel}T,  excludes  privilege. 

Whenever  there  is  a  genuine  title  and  a  general  law,  the  title  is 
interposed  between  the  general  right  or  duty  and  the  particular  person 
therewith  invested,  just  as  the  middle  term  is  interposed  between  the 
major  and  minor  terms  of  a  syllogism.  E.g.  All  persons  characterized 
by  the  fact  B  are  invested  with  the  right  or  duty  A  :  the  individual 
C  is  characterized  by  this  fact  B ;  therefore  this  individual  is  invested 
with  the  right  or  duty  A.  A  genuine  law  is  only  the  major  premiss, 
the  proposition  stating  the  general  right  or  duty,  all  B  is  A.  The 
condition,  represented  by  the  middle  term,  which  connects  or  dis- 
connects the  right  or  duty  with  a  person  is  the  title.  In  a  privilegium 
we  have  no  such  premisses  and  no  such  middle  term.  The  invest- 
ment of  the  particular  individual  C  with  a  general  right  or  duty 
is  not  in  this  case  possible,  being  unwarranted  by  any  genuine  title. 

(2)  In  Bequest  and  loss  of  a  bequest  on  account  of  caducity  or 
ereption  there  is  a  general  law  and  a  genuine  title,  but  the  law  is  not 
the  title,  any  more  than  it  is  in  any  other  mode  of  acquisition. 
Either  because  these  modes  include  fewer  voluntary  acts  than  some 
closely  allied  modes  (for  instance,  the  legatee  may  acquire  ownership 
of  the  property  bequeathed  to  him  without  any  act  of  acceptance  on 
his  part),  or,  for  some  other  reason,  divers  modes  are  lumped  together 
under  the  head  of  acquisition  by  lex.  The  name,  however,  besides 
being  a  misnomer,  is  merely  a  sink  or  receptacle  of  miscellaneous 
unrelated  titles,  just  as  we  shall  find  in  the  doctrine  of  obligations 
that  miscellaneous  titles  (variae  causarum  figurae)  are  lumped 
together  under  the  denomination  of  quasi-contract.  As  to  the 
displacement  in  the  MS.  of  §§  62-64  see  below,  p.  163. 

§  65.    Ergo  ex  his  quae  dixi-  §  65.  Thus  it  appears  that  some 

mus  apparet  quaedam  natural!  modes  of  alienation  are  based  on 

-iure    alienari,    qualia   aunt   ea  natural    la\v,    as   tradition,    and 

quae      traditione     alienantur  ;  others  on  civil  law,  as  mancipa- 

t  quaedam  chilli,  nam  mancipa-  tion>  surrender  before  the  magis- 


160      DE  ADQVIRENDO  RERVM  DOMINIC      [n.  §§65-79. 


tionis  et  in  iure  cessionis  et 
usucapionis  ius  proprium  est 
ciuium  Romanoruin. 

Inst.  2,1,11. 

§  66.  Nee  tamen  ea  tantum, 
quae  traditione  nostra  fiunt,  | 
natural!  nobis  ratione  adqui- 
runtur,  sed  etiam — |  occupando 

ideo erimus,  quio-  antea  nul- 

li|us  essent;  qualia  sunt  om- 
nia  quae  terra  mart  caelo 
capiuntur. 

§  67.  Itaque  si  /eram  bes- 
tiam  aut  uolucrem  aut  pis[- 

cem captum | eo 

usque  nostrum  esse  intellegitur, 
donee  nostra  custodia  coer- 
ceatur ;  cum  uero  custodiam 
nostram  euaserit  et  in  natu- 
ralem  libertatem  se  receperit, 
rursus  occupantis  fit,  quia  no- 
strum esse  desinit ;  naturalem 
autem  libertatem  recipere  uide- 
tur,  cum  aut  oculos  nostros 
euaserit,  aut  licet  in  conspectu 
sit  nostro,  difficilis  tamen  eius 
persecutio  sit.  Inst.  2, 1,  J2. 

§  68.  In  his  autem  anima- 
libus  quae  ex  consuetudine  ab- 
ire  et  redire  solent,  ueluti  co- 
lumbis  et  apibus,  item  ceruis 
qui  in  siluas  ire  et  redire  so- 
lent,  talem  habemus  regulam 
traditam,  ut  si  reuertendi  ani- 
mum  habere  desierint,  etiam 
nostra  esse  desinant  et  fiant 
occupautium ;  reuertendi  autem 
animum  uidentur  desinere  ha- 
bere, cum  reuertendi  consuetu- 
dinem  deseruerint. 

Inst.  2, 1, 14. 

§  69.  Ea  quoque  quae  ex 
hostibus  capiuntur  naturali 
ratione  nostra  fiunt. 

Inst.  2, 1, 17. 

§  70.  Sed  et  id  quod  per  ad- 
luuionem  nobis  adicitur  eodem 
iure  nostrum  fit ;  per  adluuio- 


trate.    usucapion,    for   these   are 
titles  confined  to  citizens  of  Eome. 


§  66.  Another  title  of  natural 
reason,  besides  Tradition,  is  Occu- 
pation, whereby  things  previously 
the  property  of  no  one  become 
the  property  of  the  first  occupant, 
as  the  wild  inhabitants  of  earth, 
air,  and  water,  as  soon  as  they  are 
captured. 

§  67.  For  wild  beasts,  birds,  and 
fishes,  as  soon  as  they  are  captured, 
become,  by  natural  law,  the  pro- 
perty of  the  captor,  but  only  con- 
tinue such  so  long  as  they  con- 
tinue in  his  power ;  after  breaking 
from  his  custody  and  recovering 
their  natural  liberty,  they  may 
become  the  property  of  the  next 
occupant ;  for  the  ownership  of 
the  first  captor  is  terminated. 
Their  natural  liberty  is  deemed 
to  be  recovered  when  they  have 
escaped  from  his  sight,  or,  though 
they  continue  in  his  sight,  when 
they  are  difficult  to  recapture. 

§  68.  In  the  case  of  those  wild 
animals,  however,  which  are  in 
the  habit  of  going  away  and  re- 
turning, as  pigeons,  and  bees, 
and  deer,  which  habitually  visit 
the  forests  and  return,  the  rule 
has  been  handed  down,  that  only 
the  cessation  of  the  intention'  of 
returning  is  the  termination  of 
ownership,  and  then  the  property 
in  them  is  acquired  by  the  next 
occupant;  the  intention  of  return- 
ing is  held  to  be  lost  when  the 
habit  of  returning  is  discontinued. 

§  69.  Capture  from  an  enemy 
is  another  title  of  property  by 
natural  law. 

§70.  Alluvion  is  another  natural 
mode  of  acquisition.  Alluvion  is 
an  addition  of  soil  to  land  by  a 


ii.  §§  65-79.]  ADQVISITIONES  DOMINII  NATVRALES    161 


nem  autem  id  uidetur  adici 
quod  ita  paulatim  flumen  agro 
.nostro  adicit,  ut  aestimare  non 
possimus  quantum  quoquo  mo- 
rn en  to  temporis  adiciatur ;  hoc 
est  quod  uulgo  dicitur  per  ad- 
luuionem  id  adici  uideri  quod 
ita  paulatim  adicitur,  ut  oculos 
nostros  fallat.  Inst.  2, 1,20. 

§  71.  Itaque  si  flumen  partem 
aliquam  ex  tuo  praedio  rescide- 
rit  et  ad  meum  praedium  per- 
tulerit,  haec  pars  tua  manet. 

Inst.  2,1,21. 

§  72.  At  si  in  medio  flumine 
insula  nata  sit,  haec  eorum 
omnium  commums  est,  qui 
ab  utraque  parte  fluminis  prope 
ripam  praedia  possiden£ ;  si 
uero  non  sit  in  medio  flumine, 
ad  eos  pertinet  qui  ab  ea  parte 
quae  proxima  est  iuxta  ripam 
praedia  habent.  Inst.  2, 1, 22. 

§  73.  Praeterea  id  quod  in 
solo  nostro  ab  aliquo  aedifica- 
tum  est,  quamuis  ille  suo  no- 
mine aedificauerit,  iure  naturali 
nostrum  fit,  quia  superficies 
solo  cedi£.  Inst.  2,  1, 30. 

§  74.  Multoque  magis  id  ac- 
cidit  et  in  planta  quam  quis 
in  solo  nostro  posuerit,  si  mo- 
do  radicibus  terrain  conplexa 
fuerit.  Inst.  2, 1,  31. 

§  75.  Idem  contingit  et  in 
/rumento,  quod  in  solo  nostro 
ab  aliquo  satum  fuerit. 

Inst.  2, 1, 32. 

§  76.  Sed  si  ab  eo  petamus 
fundum  uel  aedificium  et  in- 
pensas  in  aedificium  uel  in 
seminaria  uel  in  sementem 
factas  ei  soluere  nolimus,  po- 
terit  nos  per  exceptionem  doli 
mali  repellere,  utique  si  bonae 
fidei  possessor  fuerit. 

Inst.  1.  c. 


river,  so  gradual  that  at  a  par- 
ticular moment  the  amount  of 
accretion  cannot  be  determined  ; 
or,  to  use  the  common  expression, 
an  addition  made  by  alluvion  is 
so  gradual  as  to  elude  our  sight. 


§  71.  Accordingly  a  parcel  of 
your  land  swept  away  by  a  river, 
and  carried  down  to  mine,  con- 
tinues your  property. 

§  72.  An  island  that  rises  in 
the  middle  of  a  river  is  the  com- 
mon property  of  the  proprietors 
on  both  banks  of  the  river  ;  if  it 
is  not  in  the  middle  of  the  stream, 
it  belongs  to  the  proprietors  of 
the  nearer  bank. 


§  73.  Again,  a  building  erected 
on  my  soil,  though  the  builder 
has  made  it  on  his  own  account, 
belongs  to  me  by  natural  law  ; 
for  the  ownership  of  a  super- 
structure follows  the  ownership 
of  the  soil. 

§  74.  The  same  occurs  a  fortiori 
when  trees  are  planted  on  my  land, 
provided  they  have  struck  root. 


§  75.  Similarly,  when  corn  is 
sown  on  my  land. 


§  76.  But  if  I  bring  an  action 
to  recover  the  land  or  the  build- 
ing, and  refuse  to  compensate  the 
other  party  for  his  outlay  on  the 
building  or  the  plantation  or  the 
cornfield,  he  will  defeat  my  action 
by  the  plea  of  fraud,  at  any  rate 
if  he  was  a  bona  fide  possessor. 


M 


162      DE  ADQVIRENDO  RERVM  DOMINIO     [n.  §§  65-79. 


§  77.  Eadem  ratione  pro- 
batum  est  quod  in  chartulis 
siue  membranis  meis  aliquis 
scripserit,  licet  aureis  litteris, 
meum  esse,  quia  litterae  char- 
tulis siue  membranis  ceduntf. 
itaque  si  ego  eos  libros  easue 
membranas  petam  nee  inpen- 
sam  seripturae  soluam,  per  ex- 
ceptionem  doli  mali  summoueri 
potero.  Inst.  2, 1, 33. 

§  78.  Sed  si  in  tabula  mea 
aliquis  pinxerit  ueluti  ^magi- 
nem,  contra  probatur ;  magis 
enim  dicitur  tabulam  picturae 
cedere.  cuius  diuersitatis  uix 
idonea  ratio  redditur;  certe 
secundum  hanc  regularn  si  me 
possidente  petas  imaginem 
tuam  esse,  nee  soluas  pretium 
tabulae,  poteris  per  excep- 
tionem  doli  mali  summoueri ; 
at  si  tu  possideas,  consequens 
est,  ut  utilis  mihi  actio  aduer- 
sum  te  dari  debeat ;  quo  casu 
nisi  soluam  inpensam  picturae, 
poteris  me  per  exceptionem  doli 
mali  repellere,  utique  si  bonae 
fidei  possessor  fueris.  illud 
palam  est,  quod  siue  tu  sub- 
ripuer^s  tabulam  siue  alius, 
conpetit  mihi  furti  actio. 

Inst.  2, 1,34. 

§  79.  In  aliis  quoque  specie- 
bus  naturalis  ratio  requiritur. 
proincfe  si  ex  uuis  (aut  oliuis 
aut  spicis}  meis  uinum  aut 
oleum  aut  frumentum  feceris, 
quaeritur  utrum  meum  sit  id 
uinum  aut  oleum  aut  frumen- 
tum, an  tuum.  item  si  ex  auro 
aut  ar^rento  meo  uas  aliquod 
feceris,  uel  ex  tabulis  meis 
nauem  aut  armarium  aut  sub- 
sellium  fabricaueris ;  item  si 
ex  lana  mea  uestimentum  fece- 
ris, uel  si  ex  uino  et  melle  meo 
mulsum  feceris,  siue  ex  medi- 


§  77.  On  the  same  principle, 
the  writing  inscribed  on  my 
paper  or  parchment,  even  in 
letters  of  gold,  becomes  mine, 
for  the  property  in  the  letters  is 
accessory  to  the  paper  or  parch- 
ment ;  but  if  I  sue  for  the  books 
or  parchment  without  offering 
compensation  for  the  writing,  my 
action  will  be  defeated  by  the 
plea  of  fraud. 

§  78.  The  canvas  belonging  to 
me,  on  which  another  man  has 
painted,  e.  g.  a  portrait,  is  sub- 
ject to  a  different  rule,  for  the 
ownership  of  the  canvas  is  held 
to  be  accessory  to  the  painting: 
a  difference  which  scarcely  rests 
on  a  sufficient  reason.  By  this 
rule,  it  is  clear  that  if  I  am  in 
possession,  and  you  (the  painter) 
claim  the  portrait  without  offering 
to  pay  the  value  of  the  canvas,  I 
may  defeat  your  claim  by  the  plea 
of  fraud.  But  if  you  are  in  posses- 
sion, the  effect  is  that  I  am  entitled 
to  an  equitable  action  against  you, 
but  in  this  case  unless  I  offer  the 
price  of  the  painting,  you  defeat 
me  by  the  plea  of  fraud,  at  any 
rate  if  you  are  a  bona  fide  pos- 
sessor. It  is  certain,  that,  if  either 
you  or  another  purloined  the  can- 
vas, I  can  bring  an  action  of  theft. 

§  79.  On  a  change  of  species, 
also,  we  have  recourse  to  natural 
law  to  determine  the  proprietor. 
Thus,  if  grapes,  or  olives,  or 
sheaves  of  corn,  belonging  to  me. 
are  converted  by  another  into 
wine,  or  oil,  or  (threshed  out) 
corn,  a  question  arises  whether 
the  property  in  the  corn,  wine, 
or  oil,  is  in  me,  or  in  the  author 
of  the  conversion  ;  so  too  if  my 
gold  or  silver  is  manufactured 
into  a  vessel,  or  a  ship,  chest,  or 
chair  is  constructed  from  my 
timber,  or  my  wool  is  made  into 
clothing,  or  my  wine  and  honey 


ii.  §§  65-79.]  ADQVISITIONES  DOMINII  NATVRALES    163 


camentis  meis  emplastrum  uel 
collyrium  feceris,  (quaeritur, 
utrum  tuum  sit  id  quod  ex  meo 
effeceris,y  an  meum.  quidam 
materiam  et  substantiam  spec- 
tandam  esse  putant,  id  est 
ut  cuius  materia  sit,  illius  et  res 
quae  facta  sit  uideatur  esse,  id- 
que  maxime  placuit  Sabino  et 
(Jassio.  alii  uero  eius  rem  esse 
putant  qui  fecerit,  idque  ma- 
xime diuersae  scholaeauctoribus 
uisum  est;  sed  eum  quoque cuius 
materia  et  substantia  fuerit 
furti  aduersus  eum  qui  subri- 
puerit  habere  actionem ;  nee 
minus  aduersus  eundem  con- 
dictionem  ei  conpetere,  quiet 
extinctae  res,  licet  uindicari 
non  possmt,  condici  tamen  f uri- 
bus  et  quibusdam  aliis  posses- 
soribus  possunt. 

Inst.  2, 1,  25. 


are  made  into  mead,  or  my  drugs 
into  a  plaster  or  eye-salve,  it  be* 
comes  a  question  whether  the 
ownership  of  the  new  product  is 
vested  in  me  or  in  the  manu- 
facturer. According  to  some,  the 
material  or  substance  is  the  crite- 
rion ;  that  is  to  say,  the  owner 
of  the  material  is  to  be  deemed 
the  owner  of  the  product ;  and 
this  was  the  doctrine  which  com- 
mended itself  to  Sabinus  and 
Cassius  ;  according  to  others  the 
ownership  of  the  product  is  in  the 
manufacturer,  and  this  was  the 
doctrine  favoured  by  the  opposite 
school ;  who  further  held  that 
the  owner  of  the  substance  or 
material  could  maintain  an  action 
of  theft  against  the  purloiner,  and 
also  an  action  for  damages  (con- 
dictio),  because,  though  the  pro- 
perty which  is  destroyed  cannot 
be  vindicated,  this  is  no  bar  to 
a  condictio  or  personal  action  for 
damages  against  the  thief  and 
against  certain  other  possessors. 


QVIBVS   ALIENAKE   LICEAT  VEL   NON. 


§  62.  Accidit  aliquando,  ut 
qui  dominus  sit  alienandae  rei 
potestatem  non  habeat,  et  qui 
dominus  non  sit  a££enare  pos- 
sit.  Inst.  2,  8  pr. 

§  63.  Nam  dotale  praedium 
maritus  inuita  muliere  per  le- 
gem  luliam  prohibetur  alienare, 
quamuis  ipsius  sit  uel  manci- 
patum  ei  dotis  causa  uel  in  iure 
cessum  uel  usucaptum.  quod 
quidem  ius  utrum  ad  Italica 
tantum  praecZia  an  etiam  ad 
prouincialia  pertineat,  dubi- 
tatur.  Inst.  1.  c. 

§  64.  Ex  diuerso  agnatus  fu- 
riosi  curator  rem  furio|si  alie- 
nare potest  ex  lege  xn  tabula- 
rum  ;  item  procurator — | 


§  62.  It  sometimes  occurs  that 
an  owner  has  not  a  power  of 
alienation,  and  that  a  person  who 
is  not  owner  has  a  power  of 
alienation. 

§  63.  The  alienation  of  dower 
land  by  the  husband,  without  the 
consent  of  the  wife,  is  prohibited 
by  the  lex  Julia,  although  the 
husband  has  become  owner  of  the 
land  by  its  mancipation  to  him 
as  dower,  or  by  its  surrender  to 
him  before  a  magistrate,  or  by 
his  usucapion  of  it.  Whether  this 
disability  is  confined  to  Italian 
soil,  or  extends  to  the  provinces, 
authorities  differ. 

§  64.  Contrariwise,  an  agnate,  as 
a  lunatic's  curator,  is  empowered 
to  aliene  the  lunatic's  property  by 
the  law  of  the  Twelve  Tables; 


M  a 


164      DE  ADQVIRENDO  RERVM  DOMINIO     [n.  §§  65-79. 

est ;  item  creditor  pignus  ex  |  and  so  is  a  procurator  that  of  his 
pactione,  quamuis  eius  ea  res  principal  (when  invested  by  his 
non  sit.  sed  hoc  forsitan  ideo  principal  with  free  power  of  ad- 
uideatur  fieri,  quod  uoluntate  ministration:  Inst.  2,  1,  43). 
debitoris  intellegitur  pignus  Again,  a  pledgee,  in  pursuance 
alienari,  qui  olim  pactus  est,  ut  of  a  P**  authorizing  him  to  sell, 
liceret  creditor!  pignus  uendere,  ma^  »hene  the  f^*"0**,?!* 
si  pecunia  non  soluatur.  Jf  not  owner  °,f  ^e  thing ;  this, 

T     <•  2  8  1       however,  may  be  said  to  rest  on 
s  '    '    '    '      the   assent   of  the   pledger   pre- 
viously given  in  the  agreement 
which  empowered  the  pledgee  to 
sell  in  default  of  payment. 

§  65.  Tradition  or  transfer  of  possession,  as  we  have  seen,  was 
a  natural  mode  of  transferring  ownership  in  such  non-mancipable 
things  as  were  corporeal :  in  mancipable  things  it  could  only  transfer 
bonitary  ownership.  The  nature  of  this  conveyance,  which  belongs 
to  jus  gentium,  has  been  fully  explained  above,  §§14  a-27,  comm. 

Fructus  or  produce  of  a  thing,  when  they  become  distinct  entities, 
l>elong  to  the  owner  of  the  principal  thing,  unless  specially  acquired 
from  him  by  some  one  else.  They  may  be  so  acquired  by  transfer,  in 
which  case  one  act  of  assent  may  suffice  as  the  antecedent  to  many 
acts  of  prehension  ;  for  instance,  in  the  gathering  (perceptio)  of  fruits 
by  a  usufructuary.  Here  the  taking  them  occurs  from  time  to  time  ; 
the  will  or  intention  of  the  owner  of  the  principal  thing  was  mani- 
fested once  for  all  when  he  created  the  usufruct.  But  in  the  case  of 
a  hirer  of  land  by  mere  contract  (colonus)  a  special  tradition  of  the 
fructus  by  the  owner  in  each  particular  case  of  acquisition  is  required. 
Thus  if  the  fructus  are  res  nee  mancipi,  perception  of  them,  with  the 
consent  of  the  owner,  gives  him  ownership :  if  they  are  res  mancipi, 
bona  fide  possession,  which  usucapio  will  ripen  into  ownership. 

Mere  severance  (separatio)  of  fruits  (fructus)  from  the  soil  or  parent 
substance,  without  any  act  of  appropriation  (perceptio),  gives  to  the 
bona  fide  possessor,  according  to  Savigny,  Besitz,  22  a,  bona  fide 
possession,  which  will  be  transformed  into  ownership  by  usucapion  : 
according  to  Vangerow,  §  326,  it  gives  him  immediate  and  plenary 
ownership.  Windscheid,  Pandekten,  §  186,  notes  11  and  12,  takes  an 
intermediate  position.  Cf.  Inst.  Just.  2,  1,  35. 

If  the  true  owner  recovers  his  land  or  cattle  by  vindicatio,  the 
judex  will  compel  a  bona  fide  possessor  who  is  defendant  to  restore 
the  unconsumed  fruits  (fructus  extantes)  but  not  to  make  compensa- 
tion for  the  consumed  fruits  (fructus  consumpti).  The  mala  fide 
possessor,  on  the  contrary,  acquires  no  property  in  the  consumed 
fruits,  but  is  compelled  either  by  the  vindicatio  by  which  the  principal 
thing  is  recovered  or  by  a  separate  personal  action  (condictio)  to 


ii.  §§  65-79.]  ADQVISITIONES  DOMINII  NATVRALES    165 

restore  their  value ;  he  may  likewise  be  compelled  to  restore  the  fructus 
extantes  either  by  the  principal  vindicatio  or  by  a  separate  vindicatio. 
He  can  be  sued  for  the  value  of  the  fruits  he  has  neglected  to  gather 
(fructus  neglecti)  only  in  the  principal  vindicatio :  their  non-existence 
prevents  his  being  sued  for  them  in  a  separate  vindicatio ;  and  the 
fact  that  he  is  not  enriched  by  them  prevents  his  being  sued  for 
them  in  a  separate  condictio,  Savigny,  System,  §  267. 

§§  66-69.  Occupation  gives  property  in  a  thing  which  previously 
has  no  owner.  Quod  enim  ante  nullius  est,  id  naturali  ratione 
occupanti  conceditur,  Inst.  2,  1.  12.  If  a  thing  had  already  an 
owner,  it  is  only  after  dereliction  by  him  that  it  can  be  appropriated 
by  occupation.  Dereliction,  or  renunciation  of  ownership,  requires 
both  the  intention  to  abandon  it  and  an  external  action.  Thus  the 
casting  overboard  of  articles  in  a  tempest  to  lighten  a  ship  is  not 
dereliction,  as  there  is  no  intention  of  abandoning  the  property  in 
the  event  of  salvage,  Inst.  2,  1,  48.  Nor  does  the  mere  intention  of 
abandonment  constitute  dereliction  of  ownership  without  a  throwing 
away  or  removal  or  some  other  external  act ;  and  herein  dereliction  of 
ownership  differs  from  dereliction  of  possession,  which  does  not  require 
this  second  element.  Differentia  inter  dominium  et  possessionem 
haec  est,  quod  dominium  nihilo  minus  ejus  manet  qui  dominus  esse  non 
vult,  possessio  autem  recedit  ut  quisque  constituit  nolle  possidere, 
Dig.  41,  2,  17.  'There  is  this  difference  between  ownership  and  posses- 
sion, that  ownership  continues  after  the  will  to  own  has  ceased, 
whereas  possession  ceases  with  the  cessation-  of  the  will  to  possess.' 

§  68.  Among  wild  animals  (ferae  naturae)  a  distinction  is  to  be 
drawn.  In  those  of  them  that  are  half  tamed  (mansuefactae),  among 
which  are  mentioned  deer,  peacocks,  pigeons,  bees,  property  is  not 
limited  by  strict  detention,  as  in  other  wild  animals,  but  by  animus 
revertendi.  A  migrating  swarm  (examen)  of  bees,  accordingly, 
would  only  continue  to  belong  to  the  owner  of  the  hive  as  long  as 
it  continues  in  his  sight  and  is  easy  to  recapture,  as  it  has  no 
intention  of  returning.  In  tame  animals,  e.g.  dogs  or  geese,  the 
rights  of  the  owner  are  not  extinguished  by  their  straying  without 
an  intention  to  return.  Inst.  2,  1,  12-16. 

§§  76-79.  The  intimate  conjunction  of  two  things,  so  that  they 
are  no  longer  separable  and  restorable  to  their  former  condition, 
may  produce  a  transmutation  of  ownership.  A  separable  junction, 
as  when  two  flocks  of  sheep  are  intermingled,  or  when  a  stone  is 
set  in  a  ring,  or  when  two  metals  are  soldered  together  (plumbatura), 
or  when  the  grain  of  one  man  is  mixed  with  that  of  another,  apart 
from  an  agreement  to  share  in  common,  produces  no  change  of 
ownership.  In  one  case,  however,  namely,  when  material  has  been 
used  in  building  a  house  on  another  man's  land,  although  the  pro- 


166      DE  ADQVJRENDO  KERVM  DOMINIO     [n.  §§  65-79. 

perty  of  the  owner  of  the  material  continues,  it  is  in  a  dormant 
state  since  he  cannot,  so  long  as  it  is  fixed  to  the  land,  vindicate 
it,  'quia  superficies  solo  cedit,'  §  73.  The  Twelve  Tables,  however, 
allowed  him  the  actio  de  tigno  juncto  to  recover  double  the  value. 

An  inseparable  union  sometimes  produces  co-ownership  in  the 
whole  (communio),  sometimes  the  exclusive  ownership  of  one  of 
the  parties  (accessio). 

When  two  things  belonging  to  different  owners  are  mixed  but 
neither  produce  a  new  species,  nor  the  relation  of  principal  and 
accessory,  e.  g.  when  two  similar  wines  or  metals  are  mixed  ;  or 
when  a  new  species  is  produced  with  the  consent  of  both  owners, 
as  when  mead  is  produced  by  mixing  honey  and  wine,  electrum  by 
mixing  gold  and  silver ;  then  each  owner  loses  his  separate  owner- 
ship of  a  part,  and  becomes  joint  owner  of  the  whole.  Inst.  2,  1,  27. 

When  a  new  species  is  produced  by  one  owner  without  the  consent 
of  the  other,  then,  according  to  the  law  as  settled  by  Justinian,  the 
exclusive  ownership  is  vested  in  the  producer,  and  the  other  can  only 
obtain  redress  by  actio  in  personam  for  the  loss  of  his  ownership. 

Further,  when  the  mixture  establishes  the  relation  of  principal 
and  accessory,  that  is,  when  one  thing  loses  its  independent  exis- 
tence and  becomes  a  part  of  the  other  (accessio),  then  the  ownership 
in  the  whole  is  vested  'in  the  owner  of  the  dominant  part,  acces- 
sorium  sequitur  principale  ;  cf.  Dig.  6,  1,  23  Si  quis  rei  suae  alienam 
rem  ita  adjecerit,  ut  pars  ejus  fieret,  veluti  si  quis  statuae  suae 
bracchium  .  .  .  adjecerit,  dominum  ejus  totius  rei  effici  .  .  .  plerique 
recte  dicunt.  It  will  sometimes  be  a  question  which  part  is  to  be 
regarded  as  principal  and  which  as  accessory,  and  the  solution 
does  not  depend  on  their  comparative  value.  The  Eoman  jurists 
themselves  differ  sometimes,  as  is  shown  in  the  text,  in  their 
application  of  the  principle  of  accession,  but  the  principle  itself 
seems  to  be  that  the  part  which  maintains  its  previous  identity 
and  gives  the  dominating  character  to  the  entire  thing  is  principal, 
while  the  part  which  is  merged  in  the  other  and  so  ceases  to  have 
an  independent  existence,  is  accessory,  as  e.  g.  trees  of  one  person 
planted  and  taking  root  in  the  land  of  another,  are  thereby  entirely 
incorporated  in  the  land.  So  again,  a  fresco  painted  by  one  person 
on  a  wall  belonging  to  another  is  evidently  something  accessory  to 
the  wall.  The  case  of  an  independent  picture  is  a  subject  of  dispute 
in  this  relation.  Gaius,  §  78,  appears  to  think  that  it  ought  to  be 
governed  by  the  analogy  of  a  manuscript,  where  the  property  in  the 
writing  follows  the  property  in  the  paper,  §  77.  It  may  be  said, 
however,  that  the  principle  of  accession  does  not  properly  apply  to 
a  picture  or  to  a  manuscript  of  literary  value,  since  they  are  new 
creations,  differing  in  character  from  the  materials  in  which  they 


ii.  §§  65-79.]  ADQVISITIONES  DOMINII  NATVRALES    167 

are  embodied.  It  was  indeed  finally  settled  by  Justinian  that  the 
property  in  the  picture  belonged  to  the  painter,  though  the  latter 
would  be  bound,  as  in  similar  cases,  to  make  good  the  loss  suffered  by 
the  previous  owner  of  the  canvas.  Inst,  2,  1,  34,  cf.  Sohm.  §  64  n. 

The  remedy  of  the  ex-proprietor  of  the  accessory  is  utilis  actio, 
§  78.  This  appears  to  be  a  real  action  (utilis  in  rem  actio),  which, 
as  a  real  action  implies  that  the  plaintiff  is  owner,  seems  to  mean 
a  Fictitious  action,  4  §  34,  i.  e.  one  whose  formula  feigns  that  the 
property  was  never  divested  by  Accession.  This  may  be  what 
Gaius  means  by  utilis  actio. 

§  79.  Specification  or  conversion  by  labour  of  something  so  as  to 
constitute  a  new  thing  is  a  title  which  cannot  without  violence  be 
brought  under  either  Occupatio  or  Accessio.  Here  one  person  con- 
tributes only  his  labour,  whereby  he  transforms  the  material  or 
materials  belonging  to  another  into  a  new  product  (nova  species). 
The  Sabinians  held  that  the  product  belonged  (by  Accessio?)  to 
the  owner  of  the  material,  the  Proculians  (by  Occupatio?)  to  the 
producer  of  the  specification  or  conversion.  Justinian  adopts  an 
intermediate  opinion,  which  Gaius  mentions,  Dig.  41,  1,7,  7,  cf.  Inst. 
2,  1,  25,  that  the  product  belongs  to  the  producer,  provided  that 
it  cannot  be  reduced  to  its  original  substance,  while  if  it  can  be  it 
belongs  to  the  owner  of  that  substance ;  e.  g.  a  gold  or  silver  vessel 
belongs  to  the  owner  of  the  gold  or  silver  out  of  which  it  was  made : 
and  provided  further  that  the  change  is  a  genuine  fabrication  or 
manufacture ;  for  instance,  the  mere  thrashing  out  of  corn  is  not 
sufficient  to  change  the  ownership,  and  therefore  the  corn  belongs 
to  the  owner  of  the  sheaves,  cf.  §  79  :  and  the  mere  dyeing  of  wool 
operates  no  transfer  of  ownership  to  the  dyer,  Dig.  41,  1,  26,  3. 

In  the  subjoined  synopsis  of  the  various  titles  to  ownership  which 
have  been  considered  the  proper  position  of  Specification  is  open  to 
controversy,  but  it  would  seem  that  it  should  be  regarded  as  a  dis- 
tinct and  original  mode  of  acquisition, 

Acquisition  is  either  Derivative,  that  is  derived  by  Succession  from 

some  one  else,  or  Original,  arising  independently  of  any  one  else. 

Derivative  acquisition  depends  on  (i)  the  will  of  the  previous 

owner  (alienatio,   testatio),  (2)  the  disposition  of  a  magistrate 

or  judex  (adjudication,  addiction,  execution),  or  (3)  a  direct 

disposition  of  law  (intestate  succession,  caducity,  forfeiture). 

Original  acquisition   is   either    independent   of  Possession   or 
depends  on  Possession. 

Original  acquisition  independent  of  Possession  is  either  the 
effect  of  Separation  or  of  Conjunction. 
Separation  is  a  title  to  property  in  the  case  of  Separatio 


168      DE  ADQVIRENDO  EERVM  DOMINIO     [n.  §§  65-79. 

fructuum,  which  confers  property  in  the  fruits  on  the 
owner  of  the  principal  thing,  or  on  the  bona  fide  possessor 
of  it,  or  on  the  emphyteuta. 

Conjunction  is  either  the  conjunction  of  equal  with  equal 
or  the  conjunction  of  accessory  with  principal. 
The  conjunction  of  equal  with  equal  is  seen  in  Confusio, 
which  produces  communio  or  co-proprietorship. 

The  conjunction  of  accessory  with  principal  is  either  of 
immovable  with  immovable,  instanced  in  Alluvio  : 

or  of  movable  with  immovable,  instanced  in  Satio, 
Plantatio,  Inaedificatio : 

or  of  movable  with  movable,  instanced  in  Scriptura, 
Pictura. 

Original  acquisition  dependent  on  Possession  is  either  further 
dependent  on  Time  or  is  not  dependent  on  Time. 
Original  acquisition  dependent  on  Possession  and  further 
dependent  on  Time  is  seen  in  Usucapio  and  Praescriptio 
longi  temporis,  when  this  latter  became  an  acquisitive  and 
not  simply  an  extinctive  title. 

Original  acquisition  dependent  on  Possession  but  inde- 
pendent of  Time  is  seen  in  Occupatio,  or  taking  possession 
of  a  res  nullius,  including  Captio  ferarum,  Captio  hostilis, 
Inventio  derelicti,  Inventio  thesauri. 

§§  62-64.  It  is  conjectured  that  by  some  accidental  displacement 
these  three  paragraphs  have  been  transposed,  and  that  in  their 
proper  order  they  should  follow  §  61.  There  seems  no  good  reason 
why  they  should  be  interposed  between  the  titles  of  civil  law  and 
the  titles  of  natural  law. 

The  lex  Julia,  relating  only  to  Italian  soil,  permitted  the  husband 
to  aliene  the  dotal  land,  with  the  consent  of  the  wife,  but  prohibited 
its  hypothecation,  even  with  her  consent.  Justinian  extended  the 
prohibition  to  provincial  soil,  and  to  alienation  with  the  wife's 
consent,  Inst.  2,  8,  pr. 

In  the  time  of  the  jurist  Javolenus,  who  flourished  under  Trajan 
and  Hadrian,  and  still  probably  in  that  of  Gaius,  the  power  of  sale 
of  a  pledge,  §  64,  was  what  is  known  in  later  jurisprudence  as 
accidentale  negotii,  requiring  a  special  agreement,  Dig.  47,  2,  73,  where 
by  an  omission  of  the  compilers  the  law  is  not  brought  up  to  date. 
But  in  later  law,  as  early  at  least  as  the  time  of  Ulpian  it  had  become 
a  necessary  consequence  of  the  transaction — essentiale  negotii — so 
that  a  contrary  agreement  is  inoperative,  except  that  it  imposes  a 
necessity  of  three  denunciations  or  demands  of  payment,  Dig.  13,  7,  4. 


ii.  §§  80-85.]        PVPILLORVM  ALIENATIO 


169 


DE  PVPILLIS  AN  ALTQVID  A  SE 
ALIENAKE  POSSVNT. 

§  80.  Nunc  admonendi  sumus 
neque  feminam  neque  pupillum 
sine  tutoris  auctoritate  rem 
mancipi  alienare  posse ;  nee 
mancipi  uero  feminam  quidem 
posse,  pupillum  non  posse. 

Inst.  2,  8, 2. 

§  81.  Ideoque  si  quando  mu- 
lier  mutuam  pecuniam  alicui 
sine  tutoris  auctoritate  dederit, 
quia  facit  earn  accipientis,  cum 
scilicet  joecunia  res  nee  man- 
cipi sit,  contrahit  obligationem. 
Inst.  1.  c. 

§  82.  At  si  pupillus  idem 
fecerit,  |  quia  non  facit  acci- 
pientis  s ,  nullam  |  contra- 
hit  obligationem  ;  unde  pupil- 
lus uindicare  quidem  nummos 
suos  potest,  sicubi  extent,  id  | 
est  eos  £>etere  8uos  ex  iure 


Quiritium    esse- 
tere  potest  s- 


tere. 


repe- 
unde 


de   pupillo   quidem   quaeritur, 
an  num — | — quos  mutuos  dedit, 
ab    eo   qui   accepit,  - 
actione    eos     persequi    possit, 

quoniam — [ potest. 

Inst.  1.  c. 

§  83.  At  ex  contrario  omnes 
res  tarn  mancipi  quam  nee 
mancipi  mulieribus  et  pupillis 
sine  tutoris  auctoritate  solui 
possunt,  quoniam  meliorem 
condicionem  suam  facere  eis 
etiam  sine  tutoris  auctoritate 
concessum  est. 

§  84.  Itaque  si  debitor  pecu- 
niam pupillo  soluat,  facit  qui- 
dem pecuniam  pupilli,  sed  ipse 
non  Hberatur,  quia  nullam  ob- 
ligationem pupillus  sine  tutoris 
auctoritate  dissoluere  potest, 
quia  nullius  rei  alienatio  ei  sine 


WHETHER    WARDS    CAN 
ALIENE. 

§  80.  We  must  next  observe, 
that  neither  a  woman  nor  a  ward 
(pupillus)  can  aliene  a  manci- 
pable  thing  without  their  guar- 
dian's sanction :  nor  can  a  ward 
even  aliene  a  non-mancipable 
thing  without  such  sanction, 
though  a  woman  can. 

§  81.  Thus  a  woman  lending 
money  without  the  guardian's 
sanction  passes  the  property 
therein  to  the  borrower,  money 
being  a  non-mancipable  thing, 
and  so  imposes  a  contractual 
obligation  on  the  borrower. 

§  82.  But  a  ward  lending  money 
without  his  guardian's  sanction 
does  not  pass  the  property,  and  so 
does  not  impose  a  contractual 
obligation  on  the  borrower,  he  can 
therefore  recover  back  the  money, 
if  it  exists,  by  vindication,  that  is, 
by  claiming  it  as  quiritary  owner  ; 
whereas  a  woman  can  only  bring 
a  personal  action  of  debt.  Whether 
a  ward  can  maintain  an  action 
against  the  borrower  in  case  the 
money  has  been  spent  by  him, 
is  a  subject  of  controversy,  for  a 
ward  can  acquire  a  right  of  action 
against  a  person  without  the 
sanction  of  his  guardian. 

§  83.  On  the  contrary,  both 
mancipable  and  non-mancipable 
things  can  be  conveyed  to  women 
and  to  wards  without  their  guar- 
dian's sanction,  because  they  do 
not  require  his  sanction  to  better 
their  position. 


§  84.  Accordingly,  a  debtor 
who  pays  money  to  a  ward  passes 
the  property  therein  to  the  ward, 
but  is  not  discharged  of  his  obliga- 
tion, because  a  ward  cannot  re- 
lease a  debtor  from  any  liability 
without  his  guardian's  sanction,  as 


170      DE  ADQVIRENDO  RERVM  DOMINIO    [n.§§  86-96. 


tutoris  auctoritate  concessa  est; 
sed  tamen  si  ex  ea  pecunia  locu- 
pletior  factus  sit  et  adhuc  petat, 
per  exceptionem  doli  mail  sum- 
moueri  potest.  Inst.  1.  c. 

§  85.  Mulieri  uero  etiam  sine 
tutoris  auctoritate  recte  solui 
potest ;  nam  qui  soluit,  libera- 
tur  obliga£ione,  quia  res  nee 
mancipi,  ut  proxime  diximus, 
a  se  dimittere  mulieres  etiam 
sine  tutoris  auctoritate  possunt. 
quamquam  hoc  ita  est,  si  acci- 
piat  pecuniam ;  at  si  non  ac- 
cipiat,  sed  habere  se  dicat  et 
per  acceptilationem  uelit  debi- 
torem  sine  tutoris  auctoritate 
Hberare,  non  potest.  Inst.  1.  c. 


without  such  sanction  he  cannot 
part  with  any  right:  if,  however, 
he  is  profiting  by  the  money,  and 
yet  demands  further  payment,  be 
may  be  barred  by  the  plea  of 
fraud. 

§  85.  A  woman  may  be  law- 
fully paid  without  her  guardian's 
sanction,  and  the  payer  is  dis- 
charged of  liability,  because,  as 
we  have  just  mentioned,  a  woman 
does  not  need  her  guardian's 
sanction  for  the  alienation  of  a 
non-mancipable  thing,  provided 
always  that  she  receives  actual 
payment :  for  if  she  is  not  actually 
paid,  she  cannot  formally  release 
her  debtor  by  acceptation  (3 
§  169)  unless  with  her  guardian's 
sanction. 


§  80,  cf.  1,  §§  142-154,  comm.,  189-193. 

§§81,  82.  For  mutuum,  see  3  §  90.  If  the  money  delivered  by 
a  ward  could  be  traced  it  was  recoverable  from  any  one  by  real 
action  (vindicatio) :  if  it  had  been  consumed  in  bona  fides  a  personal 
action,  condictio  certi,  would  probably  lie  against  the  borrower  to 
recover  an  equivalent  sum :  if  jt  had  been  consumed  in  mala  fides 
a  personal  action,  ad  exhibendum,  would  lie  to  recover  an  equivalent 
sum  and  damages,  Inst.  2,  8,  2. 

§  85.  The  pupilage  of  women  after  attaining  the  age  of  twelve, 
i.  e.  the  age  of  puberty,  had  become  obsolete  before  the  time  of 
Justinian,  and  with  it  their  incapacities  of  alienation. 


§  86.  Adquiritur  autem  nobis 
non  solum  per  nosmet  ipsos, 
sed  etiam  per  eos  quos  in  po- 
testate  manu  mancipioue  habe- 
mus ;  item  per  eos  seruos  in 
quibus  usum/ruc^um  habe- 
mus  ;  item  per  homines  liberos 
et  seruos  alienos  quos  bona 
fide  possidemus.  de  quibus 
singulis  diligenter  despiciamus, 
Inst.  2,  9  pr. 

§  87.  Igitur  (quod)  liberi 
nostri  quos  in  potestate  habe- 
mus,  item  quod  serui  nostri 
mancipio  accipiunt  uel  ex  tra- 


§  86.  We  may  acquire  property 
not  only  by  our  own  acts  but 
also  by  the  acts  of  persons  in 
our  power,  hand,  or  mancipium ; 
further,  by  slaves  in  whom  we 
have  a  usufruct ;  further,  by  free- 
men or  another's  slave  of  whom 
we  are  bona  fide  possessors ;  let 
us  now  examine  these  cases  in 
detail. 


§  87.  The  rights  of  property 
which  children  under  power  or 
slaves  acquire  by  mancipation  or 
tradition,  or  claims  they  acquire 


ii.  §§86-96.]    PER  QVAS  PERSONAS  ADQVIRATVR     171 


ditione  nanciscuntur,  siue  quid 
stipulentur,  uel  ex  aliqualibet 
causa  adquirunt,  id  nobis  ad- 
quiritur;  ipge  enim  qui  in  po- 
testate  nostra  est  nihil  suum 
habere  potest.  et  ideo  si  beres 
institutus  sit,  nisi  nostro  iussu 
hereditatein  adire  non  potest ; 
et  si  iuberttibus  nobis  adierit, 
hereditas  nobis  adquiritur  pro- 
inde  atque  si  nos  ipsi  heredes 
instituti  essemus;  et  eonuenien- 
ter  scilicet  legatum  per  eos  no- 
bis adquiritur.  Inst.  2,  9, 3. 
§  88.  Dum  tamen  sciamus, 
si  alterius  in  bonis  sit  seruus, 
alterius  ex  iure  Quiritium,  ex 
omnibus  causis  ei  soli  per  eum 
adquiri  cuius  in  bonis  est. 

§  89.  Non  solum  autem  pro- 
prietas  per  eos  quos  in  potestate 
habemus  adquiritur  nobis,  sed 
etiam  possessio  ;  cuius  enim  rei 
possession  em  adepti  fuerint,  id 
nos  possidere  uidemur;  unde 
etiam  per  eos  usucapio  pro- 
cedit.  Inst.  1.  c, 

§  90.  Per  eas  uero  personas 
quas  in  manu  mancipioue  habe- 
nius  proprietas  quidem  adqui- 
ritur nobis  ex  omnibus  causis, 
sicut  per  eos  qui  in  potestate 
nostra  sunt;  an  autem  possessio 
adquiratur,  quaeri  solet,  quia 
ipsas  non  possidemus. 

§  91.  De  his  autem  seruis  in 
quibus  tantum  usumfructum 
habemus  ita  placuit,  ut  quid- 
quid  ex  re  nostra  uel  ex  operis 
suis  adquirant,  id  nobis  adqui- 
ratur; quod  uero  extra  eas 
causas,  id  ad  dominum  pro- 
prietatis  pertineat.  itaque  si 
iste  seruus  heres  institutus  sit 
legatumue  quod  ei  datum  fue- 


by  stipulation,  or  by  any  other 
title,  are  acquired  for  their  supe- 
rior ;  for  a  person  subject  to  power 
is  incapable  of  holding  property, 
accordingly  if  instituted  heir  he 
must  have  the  command  of  his 
superior  to  be  capable  of  accepting 
the  inheritance,  and  if  he  has  the 
command  of  the  superior  and 
accepts  the  inheritance,  it  is 
acquired  for  the  superior  just  as 
if  the  latter  had  himself  been  in- 
stituted heir :  and  the  rule  that  it  is 
the  superior  who  acquires  applies 
equally  in  the  case  of  a  legacy. 

§  88.  But  it  is  to  be  noticed 
that  when  one  man  is  bonitary 
owner  of  a  slave  and  another 
quiritary  owner,  whatever  the 
mode  of  acquisition,  it  enures 
exclusively  to  the  bonitary 
owner. 

§  89.  Not  only  ownership  is 
acquired  for  the  superior  but  also 
possession,  for  the  possession  of 
the  inferior  is  deemed  to  be  the 
possession  of  the  superior,  and 
thus  the  former  is  to  the  latter 
an  instrument  of  acquiring  by 
usucapion, 

§  90.  Persons  in  the  hand  or 
mancipation  of  a  superior  acquire 
ownership  for  him  by  all  modes 
of  acquisition  just  as  children  or 
slaves  in  his  power  ;  whether  they 
acquire  possession  for  him  is  a 
controversy,  as  they  are  not  them- 
selves in  his  possession. 

§91.  Respecting  slaves  in  whom 
a  person  has  only  a  usufruct,  the 
rule  is,  that  what  they  acquire 
by  means  of  the  property  of  the 
usufructuary  or  by  their  own 
labour  is  acquired  for  the  usu- 
fructuary ;  but  what  they  acquire 
by  any  other  means  belongs  to 
their  proprietor.  According!}7", 
if  such  a  slave  is  instituted  heir 
or  made  legatee,  the  inheritance  or 


172      DE  ADQVIRENDO  RERVM  DOMINIO     [IT.  §§  86-96. 


rit,  non  mihi  sed  domino  pro- 
prietatis  adquiritur. 

Inst.  2,  9,  4. 

§  92.  Idem  placet  de  eo  qui 
a  nobis  bona  fide  possidetur, 
siue  liber  sit  siue  alienus  ser- 
uus.  quod  enim  placuit  de 
usufructuario,  idem  probatur 
etiam  de  bonae  fidei  possessore. 
itaque  quod  extra  duas  istas 
causas  adquiritur,  id  uel  ad  ip- 
sum  pertinet,  si  liber  est,  uel  ad 
donrinum,  si  seruus  eat. 

Inst.  1.  c. 

§  93.  SecZ  bonae  fidei  posses- 
sor cum  usuceperit  seruum,  quia 
eo  modo  dominus  fit,  ex  omni 
causa  per  eum  sibi  adquirere 
potest.  usufructuarius  uero 
usucapere  non  potest :  primum 
quia  non  possidet,  sed  habet 
ius  utendi  [et]  fruendi ;  deinde 
quia  scit  alienum  seruum  esse. 

Inst.  1.  c. 

§  94.  De  illo  quaeritur,  an 
per  eum  seruum  in  quo  usum- 
fructum  habemus  possidere  ali- 
quam  rem  et  usucapere  possi- 
mus,  quia  ipsum  non  possidemus. 
per  eum  uero  quern  bona  fide 
possidemus  sine  dubio  et  possi- 
dere et  usucapere  possumus. 
loquimur  autem  in  utriusque 
persona  secundum  definitionem 
quam  proxime  exposuimus,  id 
est  si  quid  ex  re  nostra  uel  ex 
operis  suis  adquirant  [id  nobis 
adquiritur].  Inst.  I.e. 

§  95.  Ex  his  apparet  per  li- 
beros  homines  quos  neque  iuri 
nostro  subiectos  habemus  neque 
bona  fide  possidemus,  item  per 
alienos  seruos,  in  quibus  neque 
usumfructum  habemus  neque 
iustam  possessionem,  nulla  ex 
causa  nobis  adquiri  posse,  et 


legacy  is   acquired,   not   for  the 
usufructuary,  but  for  the  owner. 

§  92.  The  possessor  in  good 
faith  of  a  freeman  or  a  slave 
belonging  to  another  is  held  to 
have  the  same  rights  as  a  usu- 
fructuary ;  what  they  acquire  on 
any  other  account  than  the  two 
we  mentioned,  belonging  in  the 
one  case  to  the  freeman  himself  in 
the  other  to  the  rightful  owner. 


§  93.  But  after  a  possessor  in 
good  faith  has  acquired  the  owner- 
ship of  a  slave  by  usucapioii,  since 
he  has  thus  become  owner  of  him, 
all  acquisitions  by  the  slave  enure 
to  his  benefit.  A  usufructuary 
cannot  acquire  a  slave  by  usuea- 
pion,  for,  in  the  first  place,  he  has 
not  possession,  but  only  a  right 
of  usufruct ;  and  in  the  second 
place,  he  knows  that  the  slave 
belongs  to  some  one  else. 

§  94.  It  is  a  question  whether 
a  slave  can  be  an  instrument  of 
possession  and  usucapion  for  a 
usufructuary,  the  slave  not  being 
himself  in  his  possession.  A  slave, 
undoubtedly,  can  be  the  instru- 
ment of  possession  and  usucapion 
for  a  bona  fide  possessor.  Both 
cases  are  subject  to  the  limitation 
made  above  as  to  things  acquired 
by  the  slave  by  means  of  the 
usufructuary's  property  or  by  his 
own  labour. 


§  95.  It  appears  that  freemen 
not  subject  to  my  power  nor  in 
my  bona  fide  possession,  and 
slaves  of  other  people  of  whom 
I  am  neither  usufructuary  nor 
lawful  possessor,  cannot  under 
any  circumstances  be  instruments 
of  acquiring  for  me,  and  this  is 


ii.  §§86-96.]     PER  QVAS  PERSONAS  ADQVIRATVR     173 

hoc  est  quod  uulgo  dicitur  per  the  import   of  the  dictum  that 

extraneam  personain  nobis  ad-  a  stranger  to  the  family  cannot 

quiri   non   posse,     tantum    de  be  an  instrument  in  the  acquisi- 

possessione  quaeritur,  an  <  per  tion  of  anything;  only  in  respect 

extraneam}    perwmam    nobis  of  possession  there  is  a  contro- 

adquiratur.                Inst.  2,  9,  5.  ™sj  as  to  whether  it  cannot  be 

acquired  through  a  stranger. 

§  96.     In   summa   sciendum  §  96.  Finally,  it  is  to  be  ob- 

est  his  qui  in  potestate  manu  served  that  persons  under  power, 

mancipioue  sunt  nihil  in  iure  in  hand,  or  in  mancipium,  cannot 

cedi  posse ;  cum  enim  istarum  acquire    by   surrender  before   a 

personarum    nihil    suum    esse  magistrate,   for,  as  nothing  can 

possit,  conueniews  est  scilicet,  belong  to  such  persons,  it  follows 

ut  nihil  suum  esse  in  iure  uindi-  that  the7  cannot  vindicate  any- 

care  possint.  ^8  as  their  own  before  a  **&' 

strate. 

§  87.  Manus  and  mancipium  had  ceased  to  exist  before  the  time 
of  Justinian,  and  patria  potestas  was  much  reduced.  The  gradual 
steps  by  which  filiusfamilias  acquired  an  independent  proprietary 
position  have  been  already  described,  1  §  55,  comm.  The  reduction 
of  patria  potestas,  and  the  abolition  of  the  dependent  law  of  Agnation, 
may  be  almost  regarded  (so  fundamental  were  these  institutions  in 
jus  civile)  as  the  abrogation  of  the  jus  civile,  and  the  substitution 
in  its  stead  of  what  the  Komans  called  jus  gentium. 

§  88.  The  power  of  acquiring  by  the  acts  of  a  slave  and  the  power 
of  manumission,  so  as  to  make  a  slave  Latinus,  accompany  Bonitary, 
not  Quiritary,  ownership,  where  these  are  separated,  1  §§  35,  54, 
3  §  166. 

§  90.  It  is  to  be  noticed,  as  Professor  Muirhead  points  out  in  his 
note  to  this  passage,  that  no  reason  is  given  for  making  a  distinction 
between  persons  in  manu  mancipiove  and  nliifamilias  and  slaves  in 
respect  of  the  acquiring  possession  for  their  superior. 

§  94.  Dig.  41,  2,  1,  8  Per  eum,  in  quo  usumfructum  habemus, 
possidere  possumus,  sicut  ex  operis  suis  adquirere  nobis  solet,  nee  ad 
rem  pertinet,  quod  ipsum  non  possidemus  :  nam  nee  filium. 

§  95.  All  Dispositions  or  modes  of  conferring  either  rights  against 
one  (jus  in  personam),  or  rights  against  the  world  (jus  in  rem),  are 
divisible,  as  we  have  before  mentioned,  into  two  parcels  ;  an  essential 
portion,  some  mental  or  internal  act,  the  Intention  of  the  parties  ; 
and  an  evidentiary  portion,  the  Execution  of  this  intention,  its 
incorporation  in  some  overt  act.  Can  these  elements  of  title  be 
contributed  by  different  persons?  Can  the  Intention  of  disposing, 
that  is,  of  acquiring  or  aliening,  reside  in  one,  and  can  its  Execution, 
its  external  manifestation,  be  delegated  to  a  representative? 

Originally,  that  is,  under  the  ancient  civil  law,  representation  was 


174      DE  ADQVIRENDO  RERVM  DOMINIO     [n.  §§  86-96. 

only  admitted  when  the  representative  was  in  an  inferior  status  to 
the  principal,  was  his  slave,  or  subject  to  his  potestas,  manus,  or 
mancipium,  §  95. .  This  limitation  was  found  to  be  inconvenient, 
when,  in  the  progress  of  Roman  conquest,  Roman  citizens  became 
proprietors  in  remote  parts  of  the  world ;  and  Possession  was 
allowed  to  be  acquirable  by  the  instrumentality  of  extranea  persona, 
that  is,  of  a  person  who  stood  in  no  relation  of  inferiority  to  the 
acquirer,  which  though  a  doubtful  point  in  the  time  of  Gaius,  was 
finally  settled  by  a  constitution  of  the  Emperor  Severus.  In  a  civil 
solemnity,  like  mancipation,  a  man  could  not  be  represented  by  an 
independent  agent ;  but  when  the  transfer  of  possession  (traditio) 
became  a  mode  and  ultimately  the  universal  mode  of  transferring 
dominion,  it  followed  that  Ownership  (dominium),  as  well  as  Possession, 
could  be  acquired  by  the  agency  of  libera  persona,  if  the  person  making 
traditio  of  a  thing  to  the  agent  was  himself  owner  of  it,  Inst.  2,  5. 

The  acquisition  of  Obligations  or  personal  rights  by  brokerage  of 
an  independent  agent  was  less  perfectly  developed.  In  fact  Roman 
law  adhered  throughout  its  history  to  the  rule  that  an  agent  could  only 
contract  rights  for  himself  and  not  for  his  principal,  though  means 
were  taken  to  circumvent  this  restriction  as  far  as  possible.  The 
process  employed  for  this  purpose  was  a  duplication  of  the  relation  of 
agency  (mandatum).  A  as  principal  (dominus)  appointed  B  his  agent 
(procurator).  B  then  contracted  with  a  third  party  in  his  own  name, 
and,  in  order  to  transfer  the  benefit  of  his  contract  to  A,  he  ceded 
to  him  his  right  of  action,  that  is  to  say,  B,  as  principal,  in  his  turn 
made  A  his  agent  (procurator  in  rem  suam),  whereby  A  was  able  to 
sue  in  the  name  of  B,  and  obtain  judgement  on  his  own  account. 
Finally,  the  praetor  allowed  the  principal  to  sue  immediately,  with- 
out an  express  mandate,  if  intention  to  assign  was  shown,  by  bringing 
a  utilis  actio,  3  §  163,  comm. 

§  96.  We  might  have  expected  that,  as  those  subject  to  potestas 
can  acquire  for  their  superiors  by  Mancipatio,  §  87,  so  they  could  also 
acquire  by  In  jure  cessio,  especially  as  the  same  form  of  words — 
Hunc  ego  hominem  ex  jure  Quiritium  meum  esse  aio — was  used  in 
Mancipatio,  1  §  119,  and  in  Vindicatio,  4  §  16.  It  seems,  however,  that 
in  Mancipatio  the  formula  could  be  changed  to  Hanc  rem  ex  jure 
Quiritium  Lucii  Titii  domini  mei  esse  aio,  3  §  167  ;  and  that  a  similar 
modification  was  not  admissible  in  in  jure  cessio.  It  follows  that 
an  inferior  (filius,  qui  in  mancipio  est,  or  servus)  could  acquire  for 
his  superior  rural  servitudes,  but  not  urban  or  personal  servitudes. 
§§  29,  30,  these  being  only  created  by  in  jure  cessio ;  not,  that  is  to 
say,  as  res  singulae  :  for  as  parts  of  a  rerum  universitas  these  and  all 
other  rights  could  be  acquired  for  a  superior  by  an  inferior  by  making 
aditio  of  an  hereditas  with  the  sanction  of  the  superior,  §  188  ;  and 


ii.  §§  97-108.]  DE  HEREDITATIBVS 


175 


even  as  res  singulae  these  rights  could  he  acquired  for  a  superior  by 
an  inferior  by  title  of  legatum ;  that  is,  if  they  are  conferred  by 
a  testator  on  the  inferior  as  legatarius,  Vat.  frag.  51. 

As  Hereditas  includes  Obligations  (res  incorporales),  active  and 
passive,  as  well  as  Dominium  (res  corporalis),  the  consideration  of 
Obligation  should,  theoretically  speaking,  precede  the  consideration 
of  Inheritance  ;  in  an  elementary  exposition  like  the  present,  how* 
ever,  no  practical  inconvenience  is  occasioned  by  postponing  the  con- 
sideration of  Obligations,  while  we  gain  by  exhausting  the  subject  of 
jus  in  rem  before  proceeding  to  the  examination  of  jus  in  personam. 

We  may  remember  that  Hereditas,  as  well  as  Servitudes  and 
Obligations,  was  included  by  the  Komans  under  the  term  Kes 
incorporales,  §  14.  The  whole  division  of  rights,  however,  into 
Res  corporales  and  Res  incorporales  is  unsatisfactory  ;  for,  as  we 
have  already  noticed,  it  was  only  from  confusion  of  thought  that 
Dominium  was  held  to  be  Res  corporalis  ;  for  all  Rights  are,  really, 
Res  incorporales. 

QYIBYS   MODIS   PER   YNIVEESITATEM   EES   ADQVIRANTVR. 


§  97.  Hactenus  tantisper 
admonuisse  sufficit"  quemad- 
modum  singulae  res  nobis  ad- 
quirantur.  nam  legatorum  ius 
quo  et  ipso  singulas  res  adqui- 
rimus  opportunius  alio  loco 
referemus.  uideamus  itaque 
nunc  quibus  modis  per  uniuer- 
sitatem  res  nobis  adquirantur. 
Inst.  2,  9,  6. 

§  98.  Si  cui  heredes  facti 
sumus,  siue  cuius  bonorum 
possessionem  petierimus,  siue 
cuius  bona  emerimus,  siue 
quein  adoptauerimus,siue  quam 
in  manum  ut  uxorem  receperi- 
mus,  eius  res  ad  nos  transeunt. 
Inst.  1.  c. 

§  99.  Ac  prius  de  heredita- 
iibus  dispiciamus  quarum  du- 
plex condicio  est :  nam  uel  ex 
testamento  uel  ab  intestato  ad 
nos  pertinent.  Inst.  1.  c. 

§  100.  Et  prius  est,  ut  de  his 
dispiciamus  quae  nobis  ex 
testamento  obueniunt. 

Inst.  1.  c. 


§  97.  So  much  at  present  re- 
specting the  modes  of  acquiring 
SINGLE  rights ;  for  bequest  by  way 
of  legacy,  another  title  whereby 
single  rights  are  acquired,  will 
find  a  more  suitable  place  in  a 
later  portion  of  our  treatise.  We 
proceed  to  the  titles  whereby  an 
AGGREGATE  of  rights  is  acquired. 

§  98.  If  we  become  civil  heirs 
of  anyone,  or  claim  praetorian 
succession  to  his  property,  or 
purchase  the  estate  of  an  insol- 
vent, or  adopt  a  person  sui  juris, 
or  receive  a  wife  into  our  hand, 
the  whole  property  of  those  per- 
sons is  transferred  to  us  in  an 
aggregate  mass. 

§  99.  Let  us  begin  with  in- 
heritances, whose  mode  of  devo- 
lution is  twofold,  according  as 
a  person  dies  testate  or  intestate. 

§  100.  And  we  first  treat  of 
acquisition  by  will. 


176        SVCCESSIO  PER  VNIVERSITATEM:     [IT.  §§  97-108. 


§  101.  Testamentorum  autem 
genera  initio  duo  fuerunt :  nam 
aut  calatis  coinitiis  testamen- 
tum  faciebant,  quae  comitia  bis 
in  anno  testamentis  faciendis 
destinata  erant,  aut  in  procin- 
ctu,  id  est  cum  belli  causa  arma 
sumebant ;  procinctus  est  enim 
.expeditus  et  armatus  exercitus. 
alterum  itaque  in  pace  et  in  otio 
faciebant,  alterum  in  proelium 
exituri.  Inst.  2, 10, 1, 

&  102.  Accessit   deinde   ter- 

•  • 

tium  genus  testamenti  quod 
per  aes  et  libram  agitur.  qui 
neque  calatis  comitiis  neque 
in  procinctu  testamentum  fece- 
rat,  is  si  subita  morte  urgue- 
batur,  amico  familiam  suam, 
id  est  patrimonium  suum,  man- 
cipio  dabat,  eumque  rogabat 
quid  cuique  post  mortem  suam 
dari  uelle£.  quod  testamentum 
dicitur  per  aes  et  libram,  sci- 
licet quia  per  mancipationem 
peragitur.  Inst.  1.  c. 

§  103.  Sed  ilia  quidem  duo 
genera  testamentorum  in  de- 
suetudinem  abierunt ;  hoc  uero 
solum  quod  per  aes  et  libram 
fit  in  usu  retentum  est.  sane 
nunc  aKter  ordinatur  quam 
olim  solebat.  namque  olim 
familiae  emptor,  id  est  qui  a 
testatore  familiam  accipiebat 
mancipio,  heredis  locum  opti- 
nebat,  et  ob  id  ei  mandabat 
testator  quid  cuique  post  mor- 
tem suam  dari  uellet ;  nunc 
uero  alius  heres  testamento  in- 
stituitur,  a  quo  etiam  legato 
relmquuntur,  alius  dicis  gratia 
propter  ueteris  iuris  imitatio- 
nem  familiae  emptor  adhibe- 
tur.  Inst.  1.  c. 

§  104.  Eaque  res  ita  agitur  : 
qui  facit  (testamentum),  adhi- 


§  101.  Wills  were  originally  of 
two  kinds,  being  made  either  at 
the  comitia  calata,  which  were 
held  twice  a  year  for  making 
wills,  or  in  martial  array,  that  is 
to  say,  in  the  field  before  the 
enemy,  martial  array  denoting 
an  army  equipped  and  armed  for 
battle.  One  kind,  then,  was  used 
in  time  of  peace  and  quiet,  the 
other  by  persons  about  to  go  to 
battle. 

§  102.  More  recently,  a  third 
kind  was  introduced,  effected  by 
bronze  and  balance.  A  man  who 
had  not  made  his  will,  either  in 
the  comitia  calata  or  in  martial 
array,  being  in  apprehension  of 
approaching  death,  used  to  convey 
his  estate  by  mancipation  to  a 
friend,  whom  he  requested  to 
distribute  it  to  certain  persons  in 
a  certain  manner  after  his  death. 
This  mode  of  testamentary  dispo- 
sition is  called  the  will  by  bronze 
and  balance,  because  it  is  carried 
out  by  the  process  of  mancipation. 

§  103.  The  first  two  modes  have 
fallen  into  desuetude,  and  that 
by  bronze  and  balance,  which 
alone  survives,  has  undergone  a 
transformation.  In  former  times 
the  vendee  of  the  estate,  the 
alienee  by  mancipation  from  the 
testator,  held  the  place  of  heir, 
and  received  the  testator's  in- 
structions respecting  the  dispo- 
sition of  his  property  after  his 
death.  At  the  present  day,  the 
person  who  is  instituted  heir, 
and  who  is  charged  with  the 
bequests,  is  different  from  the 
person  who,  for  form's  sake,  and 
in  imitation  of  the  ancient  law, 
represents  the  purchaser. 


§  104.  The  proceedings  are  as 
follows:  The  testator  having  sum- 


ii.  §§  97-108.]     DE  TESTAMENTIS  ORDINANDIS  177 


bitis,  sicut  in  ceteris  mancipa- 
tionibus,  v  testibus  ciuibus  Ro- 
manis  pu&eribus  et  libripende, 
postquam  tabulas  testament! 
scripserit,  mancipat  alicui  dicis 
gratia  familiam  suam  ;  in  qua 
re  his  uerbis  familiae  emptor 

Utitur  FAMILY  PECVNI^lQVE 
TV  A  ENDO  MANDATELAM  CVSTO- 
DELAMQVE  MEA3f,  QVO  TV  IVRE 
TE8TAMENTVM  FACEEE  POSSIS 
SECVNDVM  LEGEM  PVBLICAM, 

HOC   AEKE,  et   ut  quidam   ad- 

IClunt    AENEAQVE    LIBRA     ESTO 

Mini  EMPTA  ;  deinde  acre  per- 
cutit  libram,  idque  aes  dat  te- 
statori  uelut  pretii  loco ;  deinde 
testator  tabulas  testamenti  te- 
nens  ita  dicit  HAEC  ITA  VT  IN 

HIS  TABVLIS  CERISQVE  SCRIPTA 
SVNT,  ITA  DO  ITA  LEGO  ITA 
TESrOR  ITAQVE  VOS  QVIRITES 
TESTIMONIVM  MIHI  PERHIBE- 

TOTE  ;  et  hoc  dicitur  nuncu- 
patio  :  nuncupare  est  enim  pa- 
lam  nominare,  et  sane  quae 
testator  specialiter  in  tabulis 
testamenti  scripserit,  ea  uidetur 
generali  sermone  nominare  at- 
que  confirmare. 

§  105.  In  testibus  autem  non 
debet  is  esse  qui  in  potestate 
est  aut  familiae  emptoris  aut 
ipsius  testatoris,  quia  propter 
ueteris  iuris  imitationem  totum 
hoc  negotium  quod  agitur  te- 
stamenti ordin&ndi  gratia  cre- 
ditur  inter  familiae  emptorem 
agi  et  testatorem  ;  quippe  olim, 
ut  proxime  diximus,is  qui  fami- 
liam testatoris  mancipioaccipie- 
bat  heredis  loco  erat ;  itaque  re- 
probatum  est  in  ea  re  domesti- 
cum  testimonium.  Inst.2, 10,9. 

§  106.  Unde  et  si  is  qui  in 
potestate  patris  est  familiae 
emptor  adhibitus  sit.  pater  eius 


moned,  as  is  done  in  other  man- 
cipations, five  witnesses,  all  Bo- 
man  citizens  of  the  age  of  pu- 
berty, and  a  holder  of  the  balance, 
and  having  already  reduced  his 
will  to  writing,  makes  a  pro-forma 
mancipation  of  his  estate  to  a  cer- 
tain vendee,  who  thereupon  utters 
these  words  :  '  Thy  family  and 
thy  money  into  my  charge,  ward, 
and  custody  I  receive,  and,  in 
order  to  validate  thy  will  con- 
formably to  the  public  enactment 
(the  Twelve  Tables),  with  this 
ingot,  and ' — as  some  continue — 
'with  this  scale  of  bronze,  unto 
me  be  it  purchased.'  Then  with 
the  ingot  he  strikes  the  scale, 
and  delivers  the  ingot  to  the  tes- 
tator, as  by  way  of  purchase- 
money.  Thereupon  the  testator, 
holding  the  tablets  of  his  will, 
says  as  follows :  '  This  estate,  as 
in  these  tablets  and  in  this  wax  is 
written,  I  so  grant,  so  bequeath, 
so  declare ;  and  do  you,  Quirites, 
so  give  me  your  attestation.' 
These  words  are  called  the  nun- 
cupation, for  nuncupation  signi- 
fies public  declaration,  and  by 
these  general  words  the  specific 
written  dispositions  of  the  testator 
are  published  and  confirmed. 

§  105.  For  the  part  of  witness, 
it  is  a  disqualification  to  be  in  the 
power  of  the  purchaser  of  the  es- 
tate or  of  the  testator,  because,  the 
old  proceeding  furnishing  the 
model,  the  whole  testamentary 
process  is  supposed  to  be  a  trans- 
action between  the  purchaser  and 
the  testator  ;  and  in  old  times,  as 
was  just  observed,  the  purchaser 
was  in  the  place  of  the  heir ; 
wherefore  the  testimony  of  per- 
sons in  the  same  family  was  re- 
jected. 

§106.  Hence  too,  if  the  vendee 
is  a  filiusfamilias,  neither  his 
father  nor  any  one  in  his  father's 


178         SVCCESSIO  PER  VNIVERSITATEM    [n.  §§  97-108. 


testis  esse  non  potest ;  ac  ne  is      power,  his  brother,  for  instance, 
quidem  qui  iu  eadein  potestate      is   competent  to  attest ;   on  the 
••    •    "     •          •  .  .  -i    .  !      other   hand    if    a    filiusfamilias, 

after  his  discharge  from  service, 
make  a  will  of  his  military  pecu- 
lium,  neither  his  father  nor  any 


est,  uelut  frater  eius.  sed  si 
films  familias  ex  castrensi  pe- 
culio  post  missionem  faciat 
testamentum,  nee  pater  eius 
recte  testis  adhibetur  nee  is  qui 
in  potestate  patris  est. 

§  107.  De  libripende  eadem 
quae  et  de  testibus  dicta  esse 
intellegemus ;  nam  et  is  testium 
numero  est. 

§  108.  Is  uero  qui  in  pote- 
state heredis  aut  fegatarii  est, 
cuiusue  heres  ipse  aut  legata- 
rius  in  potestate  est,  quique  in 
eiusdem  potestate  est,  acifeo 
testis  et  libripens  adhiberi  po- 
test, ut  ipse  quoque  heres  aut 
legatarius  iure  adhibeantur. 
sed  tamen  quod  ad  heredem 
pertinet  quique  in  eius  pote- 
state est  cuiusue  is  in  potestate 
erit,  minime  hoc  iure  uti  debe- 
mus. 


one  in  his  father's  power  is  quali- 
fied to  be  a  witness. 

§  107.  The  same  rules  apply 
to  the  balance- holder,  for  the 
balance-holder  is  reckoned  as  a 
witness. 

§  108.  Not  only  is  a  person 
who  is  in  the  power  of  the  heir 
or  legatee,  or  a  person  who  has 
power  over  the  heir  or  legatee, 
or  a  person  in  the  same  power 
as  the  heir  or  legatee,  capable  of 
being  witness  or  balance-holder, 
but  the  heir  or  legatee  himself 
can  act  in  this  character.  How- 
ever, it  is  advisable  that  as  regards 
the  heir,  and  those  in  his  power, 
and  the  person  in  whose  power 
he  is,  the  testator  should  not  avail 
himself  of  this  right. 


§§  97,  98.  On  the  death  of  a  civis  all  his  rights  and  obligations 
(except  those  of  a  purely  personal  character,  such  as  ususfructus  and 
liability  for  delict)  were  regarded  as  constituting  a  universitas  juris 
or  undivided  succession  (supra,  p.  126)  called  hereditas.  The  here- 
ditas,  in  fact,  was  the  legal  personality  of  the  deceased,  and  so  the 
successor  to  it,  called  heres,  had  exactly  the  same  position  in  re- 
spect of  the  entire  family  property  as  the  deceased  paterfamilias. 
Hence  he  was  personally  liable  to  pay  all  the  debts  in  full,  as  if  he 
had  himself  contracted  them,  cf.  Sohm,  §  108. 

In  the  corresponding  passage  of  Justinian's  Institutes  bonorum 
emptio  and  conventio  in  manum,  being  obsolete,  are  not  mentioned. 

§§  101-103.  A  will  is  thus  defined  by  Ulpian:  Testamentum 
est  mentis  nostrae  justa  contestatio,  in  id  sollemniter  facta  ut  post 
mortem  nostram  valeat,  20,  1.  Testamentary  disposition  was  an 
interference  with  the  rights  of  family  succession  under  the  law  of 
intestacy,  which  at  first  seemed  so  great  an  innovation  as  to  require 
the  sanction  of  the  gentes.  Accordingly  the  will  executed  in  the 
Comitia  Calata,  or  convocation  of  the  gentes,  was  really  a  private 
law  (perhaps  originally  instituted  as  a  modified  form  of  adoption, 
when  a  man  had  no  children  to  succeed  to  his  property) ;  and  even 
the  will  in  procinctu,  when  we  remember  the  original  identity  at 


ii.  §§  97-108.]     DE  TESTAMENTIS  ORDINANDIS  179 

Rome  of  the  civil  and  military  organization,  may  be  regarded  as  the 
legislative  act  of  the  curiae  in  military  convocation.  The  essential 
characteristic  of  this  will  was  the  nomination  of  a  heres.  Hence  so 
important  became  the  institution  of  a  heres  to  the  validity  of  a  will 
in  Roman  law,  that  a  Roman  testament  might  be  simply  defined 
as  the  institution  of  a  heres. 

The  mancipatory  will,  or  will  by  bronze  and  scale,  probably  began 
to  supersede  the  older  form,  which  was  perhaps  confined  to  patricians, 
when  the  Twelve  Tables  gave  legal  force  to  the  nuncupative  part  of 
mancipation  (Cum  nexum  faciet  mancipiranque,  uti  lingua  nuncu- 
passit,  ita  jus  esto,  Festus.  '  In  contract  or  conveyance  by  bronze 
and  balance,  the  oral  declaration  shall  h'ave  legal  force  '),  and  had  ex- 
pressly recognized  in  every  paterfamilias,  whether  patrician  or  plebeian, 
a  power  of  testamentary  disposition  (Uti  legassit  super  [familia], 
pecunia,  tutelave  suae  rei,  ita  jus  esto.  Ulpia/n,  11,  14). 

The  introduction  of  writing  marks  an  era  in  mancipatory  wills. 
Originally,  the  testator  gave  oral  instructions  to  the  familiae  emptor, 
or  purchaser  of  the  family  property,  in  the  presence  of  the  witnesses, 
as  to  the  terms  on  which  the  property  was  to  be  held  by  him  and 
distributed  after  the  testator's  death.  These  oral  instructions,  forming 
the  lex  mancipii,  or  conditions  of  the  conveyance,  called  nuncupatio, 
served  as  a  means,  under  the  clauses -of  the  Twelve  Tables  above  cited, 
of  nominating  a  heres.  Hence  a  special  lex  curiata  for  this  purpose 
was  no  longer  necessary,  and  the  familiae  emptor,  instead  of  being  a 
kind  of  trustee  for  carrying  out  the  testator's  wishes,  became  a  mere 
formality,  used  simply  for  the  purpose  of  making  the  will  mancipatory. 
Afterwards,  forthe  sakeof  secirecy,  the  testator  committed  his  intentions 
to  writing,  and  the  nuncupation  became  a  mere  form  of  publication, 
or  general  ratification  of  the  directions  contained  in  the  tablets  which 
the  testator  held  in  his  hand,  when  he  executed  the  mancipation. 

§  105.  It  is  an  intelligible  rule,  that  a  person  interested  in  the 
validity  of  a  will  should  be  incompetent  as  a  witness ;  and,  when 
the  familiae  emptor  was  in  the  place  of  the  heir,  it  was  reasonable 
to  disqualify  for  attestation  any  one  united  in  interest  to  him.  But 
when  the  mancipation  was  purely  fictitious  (imaginaria  mancipatio, 
Ulpian,  20,  2  ;  imaginaria  venditio,  Inst.  2,  10,  1),  one  sesterce  being 
paid  as  the  nominal  price,  and  the  imaginary  vendee  distinct  from 
the  heir,  the  continuance  of  this  disqualification  shows  the  tendency 
of  the  Romans  to  venerate  rules  after  the  principles  on  which  they 
were  founded  had  ceased  to  operate.  In  the  meantime  the  heir, 
who  was,  strictly  speaking,  really  interested,  was  competent  to  be 
a  witness.  Cicero,  for  instance,  mentions  that  he  and  Clodius  were 
both  witnesses  to  a  will  in  which  they  were  appointed  heirs,  Pro 
Milone,  18,  48;  but  in  the  time  of  Gaius,  as  we  see  by  the  text, 

N  a 


180        SYCCESSIO  PER  VNIVERSITATEM    [n.  §§  97-108. 

§  108,  such  attestation  was  at  least  questionable,  and  when  Ulpian 
wrote  it  seems  to  have  been  inadmissible.  The  whole  law  on  this 
subject  was,  however,  deranged  :  totum  jus  conturbatum  erat,  Inst. 
2,  10,  10:  the  transference  of  interest  from  the  familiae  emptor  to 
the  heres  not  being  accompanied  by  a  corresponding  transference  of 
testimonial  disqualification  from  the  relatives  of  the  familiae  emptor 
to  the  relatives  of  the  heres.  Justinian  converted  the  advice  of  Gaius 
into  a  fixed  rule  of  law,  and  disabled  the  heir  and  persons  united  to 
Mm  by  the  bond  of  potestas  from  giving  attestation,  Inst.  2,  10,  10. 
Legatees  retained  their  competency  to  attest. 

§  106.  This  statement  of  Gaius  respecting  a  will  of  castrense 
peculium  is  inadvertently  transferred  to  Justinian's  Institutes,  2, 
10,  9,  but  is  inconsistent  with  a  dictum  of  Ulpian's  in  the  Digest : 
Per  contrarium  quaeri  potest,  an  pater  ejus,  qui  de  castrensi  peculio 
potest  testari,  adhiberi  ab  eo  ad  testamentum  testis  possit.  Et 
Marcellus  libro  decimo  Digestorum  scribit  posse  :  et  frater  ergo 
poterit,  Dig.  28,  1,  20,  2.  We  have  here,  then,  a  case  of  Antinomy 
(contradictory  laws)  in  Justinian's  legislation.  Vangerow,  §  444,  solves 
the  antinomy  by  supposing  that  Ulpian  speaks  of  a  will  made  during 
service  ;  the  Institutes,  like  Gaius,  of  a  will  made  post  missionem. 

By  English  law,  1  Viet.  c.  26,  any  devise  or  legacy  to  an  attesting  wit- 
ness is  void,  and  the  evidence  of  the  witness  admissible,  and  no  person 
is  incompetent  to  attest  on  account  of  being  appointed  executor. 

In  another  form  of  will  deriving  its  validity  from  the  authority 
of  the  praetor,  the  form  of  mancipation  was  dropped,  and  the  only 
authentication  required  was  the  apposition  of  the  seals  of  seven 
attesting  witnesses.  Under  such  a  will,  however,  the  successor  could 
not  take  the  legal  estate  or  hereditas,  but  only  possession  of  the  goods 
or  bonorum  possessio,  §§  119,  120,  148. 

Before  the  time  of  Justinian,  a  form  of  will  had  been  established 
deriving  its  validity  from  three  orders  of  legislation  (jus  tripertitum), 
the  civil  law,  the  praetorian  edict,  and  the  imperial  constitutions. 
In  accordance  with  the  last,  the  witnesses  were  required  to  sign 
or  subscribe  their  names  ;  in  accordance  with  the  praetorian  edict 
they  were  required  to  attach  their  seals  (signacula) ;  and  in  accordance 
with  the  civil  law,  their  number  was  required  to  be  seven  (a  number 
obtained  by  adding  the  libripens  and  familiae  emptor  to  the  five 
witnesses  of  the  mancipation),  and  the  whole  formality  of  attestation 
and  publication  was  required  to  be  continuous  (unitas  actus),  that  is, 
to  proceed  from  beginning  to  end  without  interruption  or  inter- 
position of  any  other  business  as  one  act.  Inst.  2,  1 0,  3. 

Another  form  of  will  is  mentioned  by  Justinian  as  perfectly  valid 
at  civil  law,  the  Nuncupative  will,  consisting  solely  of  an  oral 
declaration  in  the  presence  of  seven  witnesses,  Inst.  2,  10,  14.  A 


ii.  §§109-111.]     DE  TESTAMENTIS  MILITVM 


181 


modification  of  this  produced  one  of  the  most  solemn  forms  of  testa- 
ment. The  nuncupation  was  made  before  the  Praeses  provinciae, 
or  a  judex  ;  and  thereupon  a  memorandum  or  protocol  (insinuatio)  of 
the  testator's  dispositions  was  made  at  length  in  the  public  records 
(acta  or  gesta)  of  the  proceedings  of  the  governor  or  court.  This 
was  called  a  public  testament.  Cod.  6,  23,  19. 

By  English  law,  1  Viet.  c.  26,  only  two  witnesses  are  required  to 
a  will,  whether  of  real  or  personal  estate.  The  will  must  be  in 
writing,  signed  at  the  end  by  the  testator,  or  by  some  other  person 
in  his  presence  and  by  his  direction ;  and  such  signature  must  be 
made  or  acknowledged  by  the  testator  in  the  presence  of  the  two 
witnesses,  who  must  be  present  at  the  same  time,  and  who  must 
attest  and  subscribe  the  will  in  the  presence  of  the  testator. 

[DE   TESTAMENTIS   MILITVM.] 
§  109.  Sed  haec  diligens  ob-          §  109.   But   from   these   strict 

seruatio    in    ordinandis    testa-      rules  in  the  execution  of  a  will 

mentis    militibus    propter  ni- 

miam  inperitiam  const  iiuiiom- 

bus     principum    remissa     est. 

nam  quamuis  neque  legitimum 

numerum  testium  adhibuerint 

neque     uendidermi     familiam 

neque  nuncupauerint  testamen- 

tum,  recte  nihilo  minus  testan- 

tur.  Inst.  2, 1 1  pr. 

§  110.    Praeterea  permissurn          §  110.    Moreover,     they     may 

est  iis  et  peregrines  et  Latinos      make  aliens  and  Latini  (Juniani) 

instituere  heredes  uel  iis  legare,     their   heirs  or  legatees,  whereas 

cum  alioquin  peregrini  quidem      under  other  wills  an  alien  is  dis- 

ratione      ciuili      prohibeantur     qualified  from  taking  a  succession 

or  legacy  by  the  civil  law,  and 
Latini  by  the  lex  Junia. 

§  1 1 1.  Celibates  also,  whom  the 
lex  Julia  disqualifies  for  taking 
successions  or  legacies,  and  child- 
less persons  whom  the  lex  Papia 


soldiers,  in  consideration  of  their 
extreme  ignorance  of  law,  have 
by  imperial  constitutions  a  dis- 
pensation. For  neither  the  legal 
number  of  witnesses,  nor  the  cere- 
mony of  mancipation  or  of  nun- 
cupation, is  necessary  to  give  force 
to  their  will. 


capere  hereditatem  legataque, 
Latini  uero  per  legem  luniam. 
§  111.  Caelibes  quoque  qui 
lege  lulia  hereditatem  legata- 
que capere  uetantur ;  item  orbi, 
id  est  qui  liberos  non  habent, 
quos  lex 


(48  uersus  in  C  perierunt] 
-prohibentur  hi — 


(6  uersus  in  C  legi  nequeunt) 

1 eius  more  faciant — | 

|xxx  annorum 1 

(8  uersus  in  C  legi  nequeunt) 

1 res 1 — 


prohibits  from  taking  more  than 
half  a  succession  or  legacy  (see 
§  286),  are  exempt  from  these 
incapacities  under  the  will  of  a 
soldier. 


(2  uersus  in  C  legi  nequeunt] 


182        SVCCESSIO  PER  VNIVERSITATEH  [n.§§  112-114. 


§  109.  The  military  will  could  only  be  executed  during  actual 
service,  and  in  this  period  only  when  the  soldier  was  in  camp,  not 
when  he  was  at  home  or  on  leave  of  absence.  A  will  made  after 
the  soldier's  discharge  from  service  or  during  his  absence  from  camp 
was  governed  by  the  same  rules  as  the  will  of  a  civilian  (paganus). 
A  military  will,  executed  without  the  ordinary  formalities,  only 
remained  valid  during  a  year  after  discharge  from  service.  Inst. 
2,  11,3. 

TESTAMENTI   FA-CTIO; 

§  112.  — ex  auctoritate  dim  §  112.  But  a  senatusconsult 
Hadriani  senatuseonsultum  under  the  late  emperor  Hadrian, 

as  already  mentioned  (1  §  1 15  a), 
made  coemption  unnecessary,  and 
permitted  women  to  make  a  will 
on  attaining  1 2  years  of  age,  only 
requiring  their  guardian's  sanc- 
tion if  they  were  still  in  a  state 


factum  est  quo  permissum  est 
! feminis  etiam  sine  co- 


emptione  te|stamentum  facere, 
si  modo  non  minores  essent 
annortim  xi I,  scilicet  ut  quae 
tutela  liberatae  non  essent, 
tutore  auctore  testari  deberent. 

§  113.  Videntur  ergo  melio- 
ris  condicionis  esse  feminae 
quam  masculi ;  nam  masculus 
minor  annorum  xini  testa- 
men  turn  facere  non  potest, 
etiamsi  tutore  auctore  testa- 
mentum  facere  uelit,  femina 
uero  post  xn  annim  testa- 
menti  f&ciendi  ius  nanciscitur, 

§  114.  Igitur  si  quaeramus  an 
ualeat  testamentum,  inprimis 
aduertere  debemus  an  is  qui 
id  fecerit  habuerit  testamenti 
factionem  ;  deinde  si  habuerit, 
requiremus  an  secundum  iuris 
ciuilis  regulam  festatus  sit,  ex- 
ceptis  militibus,  qui&its  propter 
nimiam  inpeTiti&m,  ut  diximus, 
quomodo  uelint  uel  quomocfo 
possini,  permittitur  testamen- 
tum facere. 


of  pupilage. 

§  1 1 3.  Women,  then,  are  in  a 
better  legal  position  than  males, 
for  a  male  under  14  years  of  age 
cannot  make  a  will,  even  with 
his  guardian's  sanction,  but  a 
female  acquires  testamentary  ca- 
pacity as  soon  as  she  is  12  years 
old.  " 


§  1 1 4.  Accordingly,  to  determine 
the  validity  of  a  will,  we  must 
first  ascertain  whether  the  testator 
had  testamentary  capacity  ;  next, 
if  he  had,  whether  he  conformed 
to  the  requisitions  of  the  civil  law 
in  its  execution,  with  this  reserva- 
tion, that  soldiers,  on  account  of 
their  extreme  ignorance  of  law, 
as  was  mentioned,  are  allowed  to 
make  their  wills  in  any  way  they 
like  and  in  any  way  they  can. 


§  112.  On  the  lost  leaf  of  the  Veronese  codex  Gaius  proceeded  to 
mention  the  classes  who  were  incompetent  to  make  a  will.  Among 
these  would  be  the  filiusfamilias,  who  could  only  dispose  of  his 
peculium  castrense.  Cf.  Inst.  2,  12  ;  Ulp.  20,  10  ;  Epit.  2,  2,  1. 

§  114.  Testamenti  factio  is  a  term  applied,  (A)  to  the  Testator, 
Testamenti  factio  activa ;  (B)  to  the  object  of  his  bounty,  Testamenti 


ir.  §§  112-114]         TESTAMENTI  FACTIO  183 

factio  passiva ;  (C)  to  the  witnesses.     Let  us  consider  it  in  each  of 
these  applications. 

(A)  Testament!  factio  activa  sometimes  comprehends  all  the  con- 
ditions (physical  included)  of  testamentary  capacity,  and  then  it 
excludes  children  below  the  age  of  puberty  and  lunatics :  but  the 
proper  meaning  of  testamenti  factio  is  the  qualification  by  Status  for 
mancipatio,  and  consequently  for  the  mancipatory  will  :  that  is  to 
say,  it  is  equivalent  to  Commercium,  and  therefore  is  ascribed  to 
all  cives,  all  Latini,  and  all  aliens  w,ho  have  received  a  grant  of 
commercium. 

To  make  a  will,  however,  a  testator  must  have  not  only  personal 
capacity,  but  he  must  also  have  property  to  leave.  This  latter 
condition  is  necessarily  wanting  to  the  Filiusfamilias  and  to  the 
Latinus  Junianus :  in  their  case,  therefore,  Testamenti  factio  does 
not  mean  capacity  of  being  testator,  but  of  playing  some  other 
part  in  the  mancipatory  will ;  i.  e.  of  being  heir,  or  legatee,  or  witness. 

The  testator's  capacity  is  required  at  two  periods  :  at  the  time  of 
making  the  will  and  at  the  time  of  the  testator's  death.  The  strict 
civil  law  also  required  the  continuance  of  capacity  during  the  in- 
terval between  these  dates  :  but  the  praetor  disregarded  any  inter- 
vening incapacity  (capitis  diminutio  minima),  and,  notwithstanding 
such  an  event,  gave  the  will  efficacy  by  granting  to  the  heir,  not 
the  civil  hereditas  (which  was  beyond  his  power),  but  juxta-tabular 
possession  (bonorum  possessio  juxta  or  secundum  tabulas),  §§  145-147, 
comm.,  Ulpian  23,  6.  Dig.  37,  11,  1,  8  Exigit  praetor  ut  is  cujus 
bonorum  possessio  datur  utroque  tempore  jus  testamenti  faciendi 
habuerit,  et  quum  facit  testamentum  et  cum  moritur.  .  .  .  Sed  si 
quis  utroque  tempore  testamenti  factionem  habuerit,  medio  tempore 
non  habuerit,  bonorum  possessio  secundum  tabulas  peti  poterit. 

Two  other  cases  of  incapacity  were  cured  by  the  principle  of 
postliminy  and  the  lex  Cornelia  testamentaria  :  if  a  testator  suffered 
capitis  diminutio  maxima  by  falling  into  the  hands  of  the  enemy, 
when  he  returned  from  captiyity  his  will  reacquired  validity  by  the 
operation  of  postliminy :  if  he  never  returned  his  will  obtained 
validity  by  the  fiction  that  he  died  a  moment  before  his  capture. 
Dig.  28,  3,  6,  12  Quatenus  tamen  diximus  ab  hostibus  capti  testa- 
mentum irritum  fieri,  adjiciendum  est  postliminio  reversi  vires  suas 
recipere  jure  postliminii,  aut  si  ibi  decedat,  lege  Cornelia  confirinari. 
Dig.  49,  15,  18  In  omnibus  partibus  juris,  is,  qui  reversus  non 
est  ab  hostibus,  quasi  tune  decessisse  videtur,  cum  captus  est. 
Ulpian,  23,  5. 

The  physical  conditions  of  testamentary  incapacity  (infancy,  lunacy) 
are  only  critical  at  the  date  of  making  the  will. 

(B)  The   Honoratus   or  the   recipient   of  the   testator's   bounty, 


184        SVCCESSIO  PER  VNIVERSITATEM  [n.§§  112-114. 

whether  heres  or  legatarius,  required  testament!  factio  passiva,  which 
like  testamenti  factio  activa  meant  Commercium  or  capacity  of  taking 
part  in  mancipatio.  Accordingly  both  a  filiusfamilias  and  a  Latinus 
could  be  heres  or  legatee  (for  the  limitation,  however,  of  the  capacity 
of  Latinus  Junianus  by  the  lex  Junia  see  below).  This  capacity 
must  exist  at  three  periods  (tria  tempora)  :  the  making  of  the  will, 
the  death  of  the  testator,  and  the  acquisition  of  the  succession  by  the 
heres  (aditio).  The  interval  between  the  making  of  the  will  and 
the  death  of  the  testator  was  immaterial,  Inst.  2,  19,  4,  Dig.  28,  5, 
60,  4.  The  interval  between  the  death  of  the  testator  and  the  aditio 
of  the  heres  was  material,  because  on  the  first  heres  institutus  be- 
coming incapable  the  inheritance  would  be  instantaneously  delated 
(offered  for  acceptance)  to  the  heres  substitutus  or  to  the  heres  ab 
intestate. 

The  looking  to  the  capacity  of  Honoratus  at  the  date  of  making 
the  will  as  well  as  later,  though  apparently  based  on  no  motives  of 
testamentary  policy,  but  only  due  to  the  mancipatory  form  of  the 
primitive  will,  which  was  ostensibly  a  mancipatio  inter  vivos, 
i.  e.  a  disposition  taking  effect  in  the  lifetime  of  the  mancipator, 
was  retained  in  Justinian's  legislation  after  wills  had  lost  their 
mancipatory  form. 

In  respect  of  Honoratus  it  is  necessary  to  distinguish  institutio 
from  acquisitio  (aditio)  ;  and  testamenti  factio  passiva,  competence 
for  institution,  from  capacitas  or  jus  capiundi,  competence  for 
acquisition.  Testamenti  factio  passiva  was  required  at  the  date  of 
the  making  of  the  will ;  and  in  its  absence  a  disposition  was  deemed 
to  be  unwritten  (pro  non  scripto  habetur) ;  and  the  property  dis- 
posed of  went  by  Accretio  to  the  other  heredes  scripti.  Capacitas, 
in  its  distinctive  sense,  was  only  required  at  the  date  of  acquisition  ; 
and  in  its  absence  the  unacquired  property  became  caducous,  and 
devolved  in  part  or  in  whole  to  persons  fulfilling  certain  conditions 
or  to  the  state,  as  determined  by  the  laws  of  caducity. 

Incapaces,  or  persons  who,  from  want  of  capacity  to  take,  forfeited 
part  or  the  whole  of  the  testator's  bounty,  comprehended  : 

(1)  Latini  Juniani,  who  were  made  incapable  by  the  lex  Junia, 
1  §  23,  2  §§  110,  275.     Of.  Ulpian,  17,  1. 

(2)  The  unmarried  (caelibes)  were  totally,  and  the  married  but 
childless   (orbi)   were   made   partially  incapable   by  the   lex   Papia 
Poppaea. 

(3)  Husband  or  wife  (vir  et  uxor),  who  by  the  same  law  could 
only  take,  as  between  one  another  if  they  had  no  children,  one 
tenth  of  a  heritage,  and  another  tenth  for  every  living  child  by  a 
former  marriage :   further,  another  tenth  for  a  common  child  that 
lived  to  the  day  of  naming  (nominum  dies),  or  as  Mommsen  (Staatsr. 


ii.  §§115-122.]  BONORVM  POSSESSIO  TESTATI  185 

3,  202)  would  read  the  MS.  of  Ulpian,  after  the  ninth  day  (nono  die), 
or  two  tenths  for  two  such  children,  but  not  more.  In  addition  to 
their  tenth,  the  husband  or  wife  who  were  childless  might  have  the 
usufruct  of  a  third  part,  and,  if  they  had  had  children,  the  property 
in  a  third,  Ulpian,  1,  15. 

These  disqualifications  were  not  recognized  in  Justinian's  legis- 
lation :  so  that  at  that  period  the  distinction  between  capacitas  and 
testamenti  factio  passiva  had  lost  much  of  its  importance.  We  find, 
however,  under  Justinian  the  penalty  of  forfeiture  (ereptio,  ablatio) 
for  Indignitas.  Indigni  were  persons  deemed  on  various  grounds 
unworthy  of  the  testator's  bounty.  The  devolution  of  the  property 
intended  for  them  followed  different  rules  from  those  which  governed 
other  cases  of  Incapacity.  See  §  151,  comm. 

(C)  Testamenti  factio  was  further  applied  to  designate  the  quali- 
fication of  the  witnesses  to  a  will.  This  was  only  required  to  exist 
at  one  period,  the  date  of  the  execution  of  the  will. 

§  1 1 3.  By  English  law,  the  age  at  which  a  person  was  competent 
to  make  a  will  was  formerly  the  same  as  by  Roman  law,  namely, 
12  years  for  females,  14  years  for  males  ;  but  now,  by  1  Viet.  c.  26, 
no  one  is  competent  to  make  a  will  before  attaining  2 1  years  of  age. 

BONORVM   POSSESSIO   SECVNDVM    TABVLAS. 

§115.  Non    tamen,  ut  iure          §115.  The  civil  law,  however, 

ciuili  uale&i  testamentum,  suf-  is  not  satisfied  by  our  observing 

licit  ea  obseruado  quam  supra  the  requisitions  hereinbefore  ex- 

exposuimus  de  familiae  uendi-  plained    respecting  mancipation, 

tione  et  de  testibus  et  de  nuncu-  attestation,  and  nuncupation, 
pationibus. 

§  116.    (Seel}    ante    omnia          §  116.  Above    all    things,    we 

requirendum  est,  &n  institutio  must    observe   whether   the   in- 

heredis  sollemni  more  facta  sit ;  stitution  of  an  heir  was  in  solemn 

nam    aliter   facta    institutione  form  ;  for  if  the  institution  of  an 

nihil   proficit   familiam    testa-  heir  was  not  in  the  prescribed 

toris   ita  uenire    testesque    ita  form>   {i  is   unavailing  that  the 

adhibere  et  ita  nuncupare  te-  mancipation,  attestation,  nuncu- 

stamentum,  ut  supra  diximus.  Patlon>  were  reSular' 

&  117.    Sollemnis  autem  in-  ,  ,, 

stitutio  haec  est  TITIVS  HERES     .    §      ,  '  1°       V^' 

,    .n      .  institution    is    this:    'iJe    litius 

ESTO;  sedet  ilia  mm  conpro-  heir>,     The    followi       also 

bata  uidetur  TITIVM  HEREDEM  se£ms  now  to  be  recogni/ed .  *  j 

ESSE   IVBEO;    at    ilia   non  est  order  that   Titius  be   my  heir , 

conprobata    TITTVM    HEREDEM  <i  wjsh  Titius  to   be  my  heir' 

ESSE  VOLO  ;  sed  et  illae  a  pie-  js  not  admitted  ;  and  most  reject 

risque  inprobatae  suni  TITIVM  the  following:  '  I  institute  Titius 

HEREDEM  INSTITTO,  item  HERE-  my   heir,'  '   I  make    Titius    my 

DEM  FACIO.  heir.' 


186        SVCCESSIO  PER  VNIVERSITATEM   [11.  §§  115-122. 


§  118.  Obseruandum  prae- 
terea  est,  ut  si  mulier  quae  in 
tutela  est  faciat  testamentum, 
tutore  auctore  facere  debeat ; 
alioquin  inutiliter  iure  ciuili 
testabitur. 

§  119.  Praetor  tamen  si  se- 
ptem  signis  testium  signatum 
sit  testamentum,  scriptis  here- 
dibus  secunduin  tabulas  testa- 
menti  loonorum  (possmsionem) 
pollicetur:  (ei)  si  nemo  sit  ad 
quern  ab  intestate  iure  legitimo 
pertineat  hereditas,  uelut  frater 
eodem  patre  natus  aut  patruus 
aut  fratris  filius,  ita  poterunt 
scripti  heredes  retinere  heredi- 
tatem.  nam  io^em  iuris  est  et 
si  alia  ex  causa  testamentum 
non  ualeat,  uelut  quod  familia 
non  uenierit  aut  nuncupationis 
uerba  testator  locutus  non  sit. 

§  120.  Sed  uideamus  an 
etiamsi  frater  aut  patruus  ex- 
tent, potiores  scriptis  heredibus 
habeantur.  rescripto  enim  im- 
peratoris  Antonini  significatitr, 
eos  qui  secundum  tabulas  testa- 
menti  non  iure  factas  bonorum 
possessionem  petierint,  posse  ad- 
uersus  eos  qui  ab  intestate  uindi- 
cant  hereditatem  defendere  se 
per  exceptionem  doli  niali. 

§  121.  Quod  sane  quidem  ad 
masculorum  testamenta  perti- 
nere  certum  est ;  item  ad  femi- 
narum  quae  ideo  non  utiliter 
testatae  sunt,  quia  uerbi  gratia 
familiam  non  ue-ndiderint  aut 
nuncupationis  uerbalocutae  non 
sint ;  an  autem  et  ad  ea  testa- 
menta feminarum  quae  sine  tu- 
toris  auctoritate  fecerint  haec 
constitutiopertineat,uidebimus. 

§  122.  Loquimur  autem  de 
his  scilicet  feminis  quae  non  in 
legitima  paren^um  aut  patro- 
norum  tutela  sunt,  sed  [de  his] 


§  1 1 8.  It  is  also  to  be  remem- 
bered that  a  woman  who  has  a 
guardian  must  have  her  guardian's 
sanction  to  make  a  will,  otherwise 
her  will  is  invalid  at  civil  law. 

§  119.  The  praetor,  however, 
if  the  will  is  attested  by  the  seals 
of  seven  witnesses,  promises  to 
put  the  persons  named  in  the  will 
in  juxta-tabular  possession,  and  if 
there  1$  no  one  to  take  the  in- 
heritance by  statutory  right  under 
the  rules,  of  intestacy,  a  brother 
by  the  same  father,  for  instance,  a 
father's  brother,  or  a  brother's  son, 
the  persons  named  in  the  will  are 
able  to  retain  the  inheritance  ;  for 
the  rule  is  the  same  as  if  the  will 
is  invalid  from  any  other  cause,  as 
because  the  familia  has  not  been 
sold  or  because  the  words  of  nun- 
cupation have  not  been  spoken. 

§  120.  But  are  not  the  heirs 
named  in  the  will  preferred  even 
to  a  brother  and  paternal  uncle? 
since  the  rescript  of  the  emperor 
Antoninus  permits  the  person 
named  in  the  will  who  has  ob- 
tained juxta  -  tabular  possession 
under  an  informal  will  to  repel 
the  claimants  in  intestacy  by  the 
plea  of  fraud. 

§  121.  This  certainly  applies 
both  to  the  wills  of  males  and  also 
to  the  wills  of  females  which  are  in- 
formal for  such  faults  as  omission 
to  sell  the  familia  or  to  say  the 
words  of  nuncupation:  whether 
the  constitution  applies  also  to 
wills  of  females  executed  without 
their  guardian's  sanction,  is  a 
question. 


§  122.  We  are  not  speaking  of 
females  who  are  the  statutory 
wards  of  their  parent  or  patron, 
but  of  those  who  are  wards  of  the 


ii.  §§115-122.]  BONORVM  POSSESSIO  TESTATI  187 

quae   alterius   generis    tutores  other  sort  of  guardian,  who  are 

habent,    qui    etiam    inuiti   co-  compellable  to  give  their  sanction; 

guntur  auctores  fieri ;  alioquin  for  a  parent  or  patron  can  cer- 

parentem  et  patromon  sine  au-  tainlY  not  be  displaced  by  a  will 

ctoritate  eius  facto  testamento  he  has  not  chosen  to  sanctlon- 
non  summoueri  palam  est. 

§  1 1 7.  The  necessity  of  using  formal  \vords  in  the  institution  of 
an  heir  was  abolished  by  a,  constitution  of  Constantius  and  Constans, 
A.  D.  339,  €od.  6,  23,  15. 

As  to  the  nomenclature  employed  in  the  following  exposition  of 
Eoman  testamentary  law,  it  must  be  observed  that  as  the  Koman 
conception  of  Heres  is  not  found  in  English  law,  so  we  have  no  legal 
term  corresponding  to  it.  In  the  language  of  English  jurisprudence 
Heir  denotes  a  successor  to  real  estate,  while  Executor,  the  notion  of 
which  is  derived  to  some  exterxt  from  Roman  law,  denotes  a  successor 
appointed  to  succeed  to  personal  property.  Again  Heir  denotes  a  suc- 
cessor to  real  estate  in  case  of  intestacy.  Devisee  denotes  a  successor 
to  real  estate  under  a  will. 

The  word  Executor  is  not  available  as  a  translation  of  heres.  The 
Executor  of  English  law,  unless  also  a  legatee,  holds  a  merely  onerous 
office ;  whereas  the  heres  of  Roman  law  was  always,  if  there  was  any 
residue,  a  beneficiary.  The  Roman  heres,  ip  fact,  united  the  characters 
of  the  English  Executor  and  residuary  legatee :  and  the  lex  Falcidia 
provided  that  the  residue  should  as  against  the  claims  of  legatus  always 
amount  to  a  fourth  of  the  testator's  property.  Nor  is  the  executor,  like 
the  heres,  personally  liable  for  the  debts  of  the  deceased  beyond  assets. 

In  translating  the  word  Heres  heir,  which  is  conyenient  from  its 
relation  to  the  indispensable  terms  disi  nherit  and  disinheritance,  an 
English  reader  must  not  be  misled  by  false  associations  with  Real 
Property  law,  but  must  understand  that  it  is  used  to  signify  the 
Universal  successor  of  Roman  law,  whether  designated  by  will  or  by 
the  rules  of  intestacy. 

Bequest  (which  in  English  law  is,  related  to  personalty  as  devise 
to  realty)  has  been  used  in  connexion  with  legacies,  i.  e.  with  dis- 
positions in  favour  of  legatarius  as  opposed  to  heres  ;  in  favour, 
that  is,  of  a  person  who  takes  a  single  thing  or  things  belonging  to 
the  testator,  not  his  familia,  that  is,  the  Universitas  of  his  rights  and 
obligations,  or  a  fraction  of  this  Universitas. 

§§  119,  120.  The  praetor  only  sustained  a  testament  in  spite  of  its 
civil  invalidity  when  the  grounds  of  civil  invalidity  were  want  of 
mere  external  formalities  (mancipation,  nuncupation),  not  against 
more  serious  defects,  such  as  preterition  of  self-successor.  He 
sustained  it,  however,  against  the  preterition  of  suus  postumus,  if 
suuspostumus  died  before  the  testator,  Dig.  28,  3,  12. 


188        SVCCESSIO  PER  VNIVEKSITATEM  [n.  §§115-122. 

The  praetorian  succession,  or  right  of  succession  introduced  by  the 
praetor  under  the  name  of  Bonorum  possessio,  sometimes  as  supple- 
mentary to,  and  sometimes  in  the  place  of,  civilis  hereditas,  may  be 
divided  into  testate  succession  and  intestate  succession.  The  latter 
branch  (bonorum  possessio  intestati)  was  firmly  established  at  an 
earlier  period  than  the  former  (bonorum  possessio  secundum  tabulas). 
The  rescript  mentioned  by  Gaius,  §  120,  which  is  attributed  by  some 
writers  to  Antoninus  Pius  and  by  others  to  Marcus  Aurelius,  as  is  the 
more  probable  view,  may  be  regarded  as  having  definitively  estab- 
lished the  validity  of  the  praetorian  testament,  not  simply  when 
supplementary  to,  but  also  when  in  opposition  to,  jus  civile  ;  in  other 
words,  a  praetorian  will  might  make  a  person  bonorum  possessor 
cum  re,  although  the  inheritance  was  claimed  by  some  one  with  a 
valid  civil  title. 

In  its  origin  Bonorum  possessio  was  probably  only  the  provisional  or 
interimistic  possession  granted  to  one  of  the  parties  in  a  suit  of  Heredi- 
tatis  petitio,  cf.  Sohm,  §  1 10.  This  suit  was  a  species  of  Keal  action 
(actio  in  rem),  and  in  all  Real  actions  it  is  necessary  to  determine  which 
of  the  litigants  shall  have  possession  during  the  pendency  of  the  litiga- 
tion. In  the  earliest  period,  that  of  statute-process  (legis  actio),  the 
interim  possession  was  called  vindiciae,  and  the  praetor  who  assigned 
it  to  one  of  the  parties  was  said  vindicias  dicere,  4  §  1 6.  In  making  the 
grant  of  vindiciae  he  was  probably  governed  by  the  same  rule  which 
afterwards  prevailed  when  the  question  of  interim  possession  was 
determined  by  application  of  the  Interdicts  Utrubi  and  Uti  possidetis : 
that  is  to  say  he  probably  allowed  the  party  in  actual  possession  to 
continue  in  possession.  But  this  rule  was  inapplicable  to  the  case 
of  Hereditatis  petitio,  for  at  the  decease  of  the  proprietor  who  leaves 
an  inheritance  not  one  of  the  claimants  to  succeed  may  be  in  actual 
possession.  Here  accordingly  the  grant  was  governed  by  different 
principles :  if  a  will,  prima  facie  valid,  was  propounded,  possession 
was  granted  to  the  claimant  under  the  will  (bonorum  possessio 
secundum  tabulas) :  if  no  such  will  was  propounded,  possession  was 
granted  to  the  civil  heirs,  the  self-successor  (suus  heres)  being  eventu- 
ally allowed  to  claim  bonorum  possessio  unde  liberi,  coming  before  the 
nearest  agnates  (legitimi).  Then  as  supplementary  to  the  civil  law, 
persons  who  were  not  recognized  as  heredes,  namely  persons  claiming 
under  a  praetorian  will,  till  they  were  preferred  by  statute  to  agnates, 
§  .120,  and  next  cognates  (bonorum  possessio  unde  cognati),  and  the 
wife  or  husband,  as  such  (bonorum  possessio  unde  vir  et  uxor),  were 
put  in  possession  in  default  of  other  heirs  :  children  (liberi),  who  by 
emancipation  had  lost  the  character  of  self-successors,  were  never- 
theless admitted  to  possession  in  the  first  order  in  preference  to  agnates 
of  the  second  order,  just  as  if  they  had  continued  unemancipated 


ii.  §§  123-137.]  DE  EXHEREDATIONE  LIBERORVM       189 


(bonorum  possessio  unde  liberi).  The  right  of  provisional  possession 
of  course  corresponded  to  a  presumptive  right  of  definitive  ownership. 

Although  a  will  was  propounded,  yet  if  a  descendant  of  the 
testator,  who  would  have  been  self-successor  if  he  had  not  been 
emancipated,  was  therein  pretermitted  (praeteritus),  i.e.  not  either 
instituted  heir  or  disinherited,  possession  was  granted  to  such  preter- 
mitted descendant  (bonorum  possessio  contra  tabulas).  Contra-tabular 
possession  did  not  make  a  will  absolutely  void  as  the  passing  over 
of  suus  heres  might  do :  if  the  praeteritus  was  an  emancipated  son, 
although  he  obtained  contra-tabular  possession,  he  was  bound,  as  we 
shall  see,  by  some  of  the  dispositions  of  the  will ;  so  that  his  suc- 
cession was  partly  intestate,  partly  testate. 

§  122.  In  ancient  Kome,  females,  even  after  attaining  their 
majority,  were  subject  to  perpetual  guardianship.  In  the  time  of 
Gaius,  the  only  survival  of  such  guardianship  to  which  they  con- 
tinued really  subject  appears  to  have  been  that  of  ascendants  and 
patrons,  cf.  1  §§  189-193;  2  §§  85,  112.  But  before  the  time  of 
Justinian  even  this  had  ceased. 

DE  EXHEKEDATIONE    LIBEEOEVM. 


§  123.  Item  qui  filium  in 
potestate  habet  curare  clebe£, 
ut  eum  uel  heredem  instituat 
uel  nominatim  exheredet ;  alio- 
quin  si  eum  silentio  praeterie- 
rit,  inutiliter  testabitur,  adeo 
quidem,  ut  nostri  praeceptores 
existiment,  etiamsi  uiuo  patre 
filius  defunctus  sit,  neminem 
heredem  ex  eo  testamento  exi- 
stere  posse,  qu/a  scilicet  statim 
ab  initio  non  constiterit  insti- 
tutio.  sed  diuersae  scholae 
auctores,  siquidem  films  mortis 
patris  tempore  uiuat,  sane  in- 
pedimento  eum  esse  scriptis 
heredibus  et  ilium  ab  intestato 
heredem  fieri  confitentur ;  si 
uero  ante  mortem  patris  inter- 
ceptus  sit,  posse  ex  testamento 
hered^afem  adiri  putant,  nullo 
iam  filio  inpedimento ;  quia 
scilicet  existimant  (mm)  sta- 
tim ab  initio  inutiliter  fieri 
testamentum  filio  praeterito. 

Inst.  2, 13  pr. 


§  123.  Moreover,  a  testator  who 
has  a  son  in  his  power  must  take 
care  either  to  institute  him  heir  or 
to  disinherit  him  individually,  for 
passing  him  over  in  silence  invali- 
dates the  will.  So  much  so,  that 
according  to  the  Sabinians,  even 
if  the  son  die  in  the  lifetime  of 
the  father,  no  one  can  take  as 
heir  under  the  will  on  account  of 
the  original  nullity  of  the  insti- 
tution. But  the  followers  of  the 
other  school  hold  that  although 
the  son,  if  alive  at  the  time  of 
his  father's  death,  bars  the  heirs 
mentioned  in  the  will  and  takes 
as  self-successor  by  intestacy,  yet, 
if  the  son  die  before  the  father, 
the  heirs  under  the  will  may 
succeed,  the  son  being  no  longer 
in  their  way,  because  according  to 
this  view  the  will  was  not  void 
ab  initio  by  his  silent  preter- 
mission. 


190        SVCCESSIO  PER  VNIVERSITATEM  [n.  §§  123-137. 


§  124.  Ceteras  uero  liberorum 
personas  si  praeterierit  testator, 
ualet  testamentum  (sed}  prae- 
teritae  istae  personae  scriptis 
heredibus  in  partem  adcrescunt, 
si  sui  heredes  sint.  in  uirilem, 
si  extranei,  in  dimidiam.  id  est 
si  quis  tres  uerbi  gratia  filios 
heredes  instituerit  et  filiam 
praeterierit,  filia  adcrescendo 
pro  quarta  parte  fit  heres,  et  ea 
ratione  idem  c'onsequitur,  quod 
ab  intestato  patre  mortuo  habi- 
tura  esset ;  at  si  extraneos  ille 
beredes  instituerit  et  filiam 
praeterierit,  filia  adcrescendo 
ex  dimidia  parte  fit  heres. 
quae  de  filia  diximus,  eadem 
et  de  nepote  deque  omnibus 
liberorum  personis  seu  inascu- 
lini  seu  /eminini  sexus  dicta 
intellegemus.  Inst.  1.  c. 

§  125.  Quid  ergo  est?  licet 
eae  secundum  ea  quae  diximus 
scriptis  heredibus  dimidiam 
partem  detrahan-t,  tamen  prae- 
tor eis  contra  tabulas  bonorum 
possessionem  promittii,  qua  ra- 
tione extranei  heredes  a  tota 
hereditate  repelluntur  et  effi- 
ciuntur  sine  re  heredes. 
sf*  •§  1^6.  Et  hoc  iure  utebamur, 
quasi  nihil  inter  Feminas  et 
masculos  interesset ;  sed  nuper 
imperator  Antoninus  signifi- 
cauit  rescripto  suas  non  plus 
nancisci  feminas  per  bonorum 
possessionem,  quam  quod  iure 
adcrescendi  consequerentur. 
quod  in  emancipatarum  quoque 
persona  obseruandum  eat,  ut 
hae  quoque,  quod  adcrescendi 
iure  habiturae  essent,  si  in  po- 
testate  fuissent,  id  ipsum  etiam 
per  bonorum  possessionem  ha- 
beant. 

§  127.  Sed  siquidem  filius  a 


§  124.  By  the  pretermission  of 
other  self-successors  a  will  is  not 
avoided,  but  the  omitted  persons 
come  in  to  share  with  the  heirs 
named  in  the  will,  taking  an 
aliquot  part  if  the  latter  are  self- 
successors,  a  moiety  if  they  are 
strangers.  Thus  if  a  man  has 
three  sons  and  institutes  them 
heirs,  saying  nothing  of  his 
daughter,  the  daughter  comes  in 
as  co-heir  and  takes  a  fourth  of 
the  estate,  being  entitled  to  the 
portion  which  would  have  de- 
volved on  her  by  intestacy :  but 
when  the  instituted  heirs  are 
strangers,  the  daughter,  if  passed 
over,  comes  in  and  takes  a  moiety. 
What  has  been  said  of  the 
daughter  applies  to  the  son's 
children,  male  and  female. 


§  125.  But  though  a  female 
according  to  this  statement  of 
the  law  only  deprives  the  heirs 
under  the  will  of  a  moiety,  the 
praetor  promises  to  give  her 
contra-tabular  possession,  so  that, 
if  strangers,  they  lose  the  whole, 
and  become  heirs  without  taking 
anything. 

§  126.  And  this  was  once  the 
law,  and  there  was  no  distinction 
between  males  and  females ;  but 
the  Emperor  Antoninus  has  re- 
cently decided  by  rescript  that 
female  self-successors  shall  not 
take  more  by  contra-tabular  pos- 
session than  they  would  by 
coming  in  as  co-heirs  at  civil  law, 
by  right  of  accrual.  And  the 
same  rule  applies  to  emancipated 
daughters,  that  is,  they  obtain  by 
contra-tabular  possession  the  same 
shares  as  they  would  have  ob- 
tained as  co-heirs  by  right  of 
accrual  if  they  had  not  been 
emancipated. 

§  127.  A  son  must  be   disin- 


IT.  §§  123-137.]  DE  EXHEREDATIONE  LIBERORVM        191 


patre  exheredetur,  nominatim 
exhered&ri  debet,  ;  alioquin  non 
uidetur  exheredari.  nomina- 
tim autem  e^heredari  uidetur, 
siue  ita  exheredetur  TinVs  FI- 

LIVS   MEVS   EXHEE.ES  ESTO, 


ita  FILTVS  MEVS    EXHEKES  ESTO, 

non  adieCto  proprio  nomine. 

Inst.  2,  13,1. 

§  128.  Ceterae  uero  liberomm 
personae  uel  femini  sexus  uel 
masculini  sajtis  inter  ceteros 
exheredantur,  id  est  his  uer- 

})is   GETEBI   OMNES   EXHEREDES 

SVNTO,  quae  uerba  -  .post 
injstitutionem  heredum  adici 
solent.  sed  hoc  ita  —  |. 

Inst.  1.  c. 

§  129.  Nam  praetor  omnes 
uirilis  sexus  liberorum  perso- 
nas,  |  id  est  nepotes  quoque  et 
pronepotes  -  j  -  1  -  1. 


§  130.  Postumi  quoque  liberi 
uel  heredes  institui  debent  uel 
exheredari. 

§  131.  Et  in  eo  par  omnium 
condic^o  est,  quod  (ety  in  filio 
•postumo  et  in  quolibet  'ex  ceteris 
liberis  siue  feminini  seafus 
siue  -masculini  praeterito  ualet 
quidem  testamentum,  sed  po- 
stea  agnatione  postumi  siue 
postumae  rumpitur,  et  ea  ra- 
tione  totum  infirm&iur.  ideo- 
^ue  si  mulier  ex  qua  postumus 
aut  postuma,  speraba^r  abor- 
tum  fecerit,  nihil  inpedimento 
est  scriptis  heredibus  ad  here- 
ditatem  adeundam.  Inst.  1.  c. 

§  132.  Sed  feminini  quidem 
sexus  personae  uel  nominatim 
uel  inter  ceteros  exheredari 
solent,  dum  tamen  si  inter 


herited  individually ;  otherwise 
the  disherison  is  invalid.  In- 
dividual disherison  may  be  ex- 
pressed in  these  terms :  Be  Titius 
my  son  disinherited :  or  in  these  : 
Be  my  son  disinherited,  without 
inserting  his  name. 


and    all 
may    be 


§  128.  Other  male 
female  self-successors 
sufficiently  disinherited  inter 
ceteros  thus :  Be  the  remainder 
disinherited,  which  words  usually 
follow  the  institution  of  "the  heir : 
this,  however,  is  only  the  rule  of 
the  civil  law. 

§129.  For  the  Praetor  requires 
all  male  self-successors,  sons, 
grandsons,  greatgrandsons,  to 
be  disinherited  individually,  al- 
though he  permits  females  to 
be  disinherited  in  an  aggregate 
(inter  ceteros),  and,  failing  such 
disherison,  promises  them  the 
contra-tabular  succession. 

§  130.  Children  born  after  the 
making  of  the  will  must  either  be 
instituted  heirs  or  disinherited. 

§  131.  And  in  this  respect  all 
stand  in  the  same  position,  that 
if  a  son  or  any  other  child,  male 
or  female,  born  after  the  making 
of  the  will,  be  passed  over  in 
silence,  the  will  is  originally  valid, 
but  subsequently  rescinded  and 
totally  avoided  by  the  birth  of  the 
child  ;  so  that  if  the  woman  from 
whom  a  child  was  expected  have 
an  abortive  delivery,  there  is 
nothing  to  prevent  the  heirs 
named  in  the  will  from  taking 
the  succession. 

§  132.  Female  self-successors 
born  after  the  making  of  the  will 
may  be  disinherited  either  indi- 
vidually or  inter  ceteros,  with 


192        SVCCESSIO  PER  VNIVERSITATEM   [n.  §§  123-137. 


ceteros  exheredentur,  aliquid 
eis  legetur,  ne  uideantur  per 
obliuioneia.  praeteritae  esse. 
masculini  uero  sexus  person&s 
placuit  non  aliter  recte  exAere- 
dari,  quam  si  nominatim  ex- 
heredentur,  hoc  scilicet  modo 
QVICVMQVE  MIHI  FILIVS  GENI- 
TVS  FVEBIT  _EX|HEBES  ESTO. 

Inst.  1.  c. 

§  132  a. 1  potest  u 1 — 

(4  uersus  in  C  legi  nequeunt) 
-agat- 


§  133.  Postumorum  autem 
loco  sunt  et  hi  qui  in  sui  here- 
dis  |  locum  succedendo  quasi 
agnascendo  fiunt  parentilous 
sui  heredes.  ut  ecce  si  filium 
et  ex  eo  nepotem  ne\piemue  in 
•potestate  habeam,  quia  filius 
gradu  praecedit,  \  is  solus  iura 
sui  heredis  habet,  quamuis  ne- 
pos  quo\que  et  neptis  ex  eo  in 
eadem  potestate  sint ;  sed  si 
filius  meus  me  uiuo  moriatur, 
aut  qualibet  ratione  exeat  de 
potestate  mea,  incipit  nepos 
neptisue  in  eius  locum  succe  - 
dere,  et  eo  modo  iura  suorum 
heredum  quasi  agnatio\ne  nan- 
ciscuntur.  Inst.  2, 13, 2. 


§  134.  Ne  ergo  eo  modo 
rumpatur  mihi  t,e\sifimentum, 
sicut  ipsumjilium  uel  heredem 
mstituere  uel  |  exheredare  de- 
beo,  ne  non  iure  faciam  testa- 
mentum,  ita  et  we|potem  ne- 
ptemue  ex  eo  necesse  est  mihi 
uel  heredem  instituere  uel  ex- 
heredare, ne  forte,  me  uiuo  filio 
mortuo,  succedendo  in  locum 
eius  nepos  neptisue  quasi  agna- 
tione  rumpat  testamentum  ;  id- 


this  proviso,  that  if  they  are 
disinherited  inter  ceteros,  some 
legacy  must  be  left  them  in  order 
that  they  may  not  seem  to  have 
been  pretermitted  through  forget- 
fulness.  Male  self -successors,  sons 
and  further  lineal  descendants, 
are  held  not  to  be  duly  disin- 
herited unless  they  are  disin- 
herited individually,  thus:  Beany 
son  that  shall  be  born  to  me  dis- 
inherited. 


§  133.  With  children  born  after 
the  making  of  the  will  are  classed 
children  who  by  succeeding  to 
the  place  of  self-successors  become 
subsequent  self-successors  like  the 
afterborn.  For  instance,  if  a  tes- 
tator have  a  son,  and  by  him  a 
grandson  or  granddaughter  under 
his  power,  the  son  being  nearer 
in  degree  alone  has  the  rights  of 
self-successor,  although  the  grand- 
son and  granddaughter  are 
equally  in  the  ancestor's  power. 
But  if  the  son  die  in  the  lifetime 
of  the  testator,  or  by  any  other 
means  pass  out  of  the  testator's 
power,  the  grandson  and  grand- 
daughter succeed  to  his  place, 
and  thus  acquire  the  rights  of 
self-successors  to  the  testator  just 
as  if  they  were  children  born 
after  the  making  of  the  will. 

§  134.  To  prevent  this  subse- 
quent rupture  of  my  will,  just 
as  a  son  must  be  either  instituted 
heir  or  disinherited  individually 
to  make  a  will  originally  valid, 
so  a  grandson  or  granddaughter 
by  a  son  must  be  either  insti- 
tuted heir  or  disinherited,  lest 
if  the  son  die  in  the  testator's 
lifetime  the  grandson  and  grand- 
daughter should  take  his  place  and 
rupture  the  will  in  the  same  way 
as  if  they  had  been  children  born 


ii.  §§  123-137.]  DE  EXHEREDATIONE  LIBERORVM       193 


que  lege  lunia  Vellaea  prouisum 
est,  in  qua  simul  exheredationis 
modus  notatur,  ut  uirilis  sexus 
(postumiy  nominatim,  femi- 
nini  uel  nominatim  uel  inter 
ceteros  exheredentur,  dum  ta- 
men  iis  qui  inter  ceteros  exhe- 
redantur  aliquid  legetur. 
I Inst.  1.  c. 

§  135.  jE'mancipatos  liberos 
iure  ciuili  neque  heredes  insti- 
tuere  neque  exheredare  necesse 
est,  quia  non  sunt  sui  heredes  ; 
sed  praetor  omnes  tain  feminini 
quam  masculini  sexus,  si  here- 
des non  instituantur,  exhere- 
dari  iubet,  uirilis  sexus  womi- 
natim,  feminini  uel  nominatim 
uel  inter  ceteros  ;  quodsi  neque 
heredes  instituti  fuerint  neque 
ita  ut  supra  diximus  exhere- 
dati,  praetor  promittit  eis  con- 
tra tabulas  bonorum  posses- 
sionem.  Inst.  2, 13,  3. 

§  135  a.  In  potestate  patm 
non  sunt  qui  cum  eo  ciuitate 
Romana  donati  sunt  nee  in  ac- 
cipienda  ciuitate  Romana  pater 
petiit,  ut  eos  in  potestate  habe- 
re£,  aut,  si  petiit,  nou  inpetrauit, 
nam  qui  (m)  potestatem  patris 
ab  imperatore  rediguntur  nihil 
diffe|runt  a . 

§  136.  Adoptiui  filii  quamdiu 
manent  in  adojptione  natura- 
lium  loco  sunt ;  emancipati 
uero  (a)  patre  adoptiuo  neque 
iure  ciuili  neque  quod  ad  edi- 
ctum  praetoris  pertinet,  inter 
liberos  numerantur. 

Inst.  2, 13,4. 

§  1 37.  Qua  ratione  accidit  ut 
ex  diuerso  quod  ad  naturalem 
parentem  pertinet,  quamdiu 
quidem  sint  in  adoptiua  familia, 
extraneorum  numero  habean- 
tur  ;  si  uero  emancipati  fuerint 


after  the  execution  of  the  will. 
The  lex  Junia  Vellaea  allows  this 
and  directs  them  to  be  disin- 
herited like  children  born  after 
a  will  is  executed,  that  is  to  say, 
males  individually,  females  either 
individually  or  inter  ceteros,  pro- 
vided that  those  who  are  disin- 
herited inter  ceteros  receive  some 
legacy. 

§  135.  Emancipated  children 
by  civil  law  need  neither  be 
appointed  heirs  nor  disinherited 
because  they  are  not  self-suc- 
cessors. But  the  Praetor  requires 
all,  females  as  well  as  males, 
unless  appointed  heirs,  to  be 
disinherited,  males  individually, 
females  either  individually  or 
inter  ceteros,  and  if  they  are 
neither  appointed  heirs  nor  dis- 
inherited as  described,  the  Praetor 
promises  to  give  them  the  contra- 
tabular  possession. 


§  1 35  a.  Children  who  are  made 
Roman  citizens  along  with  their 
father  are  not  subject  to  his 
power,  if  at  the  time  he  either 
omitted  to  petition  for,  or  failed 
to  obtain,  a  grant  of  patria  potes- 
tas :  for  those  who  are  subjected  to 
the  father's  power  by  the  emperor 
differ  in  no  respect  from  those 
under  power  from  time  of  birth. 

§  136.  Adoptive  children,  so 
long  as  they  continue  in  the 
power  of  the  adoptive  father, 
have  the  rights  of  his  natural 
children:  but  when  emancipated 
by  the  adoptive  father  they 
neither  at  civil  law  nor  in  the 
Praetor's  edict  are  regarded  as 
his  children. 

§  137.  And  conversely  in 
respect  of  their  natural  father  as 
long  as  they  continue  in  the  adop- 
tive family  they  are  reckoned  as 
strangers :  but  when  emancipated 
by  the  adoptive  father  they  have 


194      SVCCESSIO  PER  VNIVERSITATEM     [n.§§  123-137. 

|_  d  « 

ab  adoptiuo  patre,  time  inci-  the  same  rights  in  their  natural 
plant  in  ea  causa  esse  qua  futuri  family  as  they  would  have  had 
essent,  si  ab  ipso  natural!  patre  if  emancipated  by  their  natural 
{emancipati}  fuissent.  father  (that  is,  unless  either  in- 

Inst.  1.  c.  stituted  heirs  or  disinherited  by 
him,  they  may  claim  the  contra- 
tabular  succession). 

§  123.  The  praeterition  of  suus  heres,  another  circumstance  which 
as  well  as  testamenti  factio  affected  the  validity  of  a  will,  was  at  civil 
law  critical  both  at  the  time  of  making  the  will  and  at  the  time  of 
the  testator's  death  and  in  the  interval :  but  in  later  times  this 
defect  of  a  will  was  healed  by  the  praetor,  who  granted  juxta-tabular 
possession  if  the  defect  only  existed  at  the  first  and  third  period, 
Dig.  28,  3,  12  pr.,  so  that  practically  the  existence  of  a  pretermitted 
suus  heres  at  the  time  of  the  testator's  death  was  alone  important. 

The  necessity  of  disinheriting  a  suus  heres  is  grounded  on  the 
principle  of  primitive  law,  that  the  child  is  co-proprietor  with  the 
parent:  hence,  unless  something  occurs  to  divest  the  child  of  his 
property,  he  will  simply  become  sole  proprietor  by  survivorship  on 
the  death  of  his  father.  Dig.  28,  2,  11,  ''In  self-succession  we  have 
a  still  more  striking  instance  of  an  unbroken  continuity  of  dominion, 
for  there  appears  to  be  no  vesting  by  it  of  new  property  by  inheritance, 
but  the  heir  is  deemed  to  have  been  previously  proprietor  even  during 
the  lifetime  of  the  father.  Hence  the  names  filiusfamilias  and  pater- 
familias imply  a  similar  kind  of  legal  relation  to  the  patrimony,  though 
one  is  parent  and  the  other  child.  Therefore  the  death  of  the  parent 
occasions  no  acquisition  of  new  property  by  inheritance,  but  only  an 
increased  freedom  in  the  administration  of  already  existing  property. 
Hence,  even  in  the  absence  of  testamentary  institution,  a  self-suc- 
cessor is  proprietor :  and  it  is  no  objection  to  this,  that  a  parent  has 
the  power  of  disinheriting  a  self-successor,  for  he  also  had  the  power 
of  putting  him  to  death.' 

The  characteristic  of  the  Roman  will  that  it  grounded  a  Universal 
succession  (unlike  the  English  will  which  may  be  a  merely  Partial 
definition  of  the  succession),  which  is  expressed  in  the  maxim, 
Nemo  pro  parte  testatus,  pro  parte  intestatus  decedere  potest,  had 
its  historic  origin,  not  probably  in  a  perception  of  its  manifold 
utility,  but  in  the  primitive  form  of  the  will — a  proposal,  perhaps  in 
the  form  of  an  adoption,  laid  before  the  legislative  assembly  for  its 
sanction,  §  101.  The  assembly  could  no  more  judge  of  the  justice 
of  a  proposed  arrangement  without  having  laid  before  it  the  whole 
plan  of  succession  than  it  could  judge  of  the  fairness  of  a  contract  by 
inspection  of  a  single  paragraph.  It  could  not  therefore  allow  the 
testator  merely  to  lay  before  it  certain  partial  modifications  of  the 


ii.  §§123-137.]  POSTVMI   SVI  195 

intestate  succession  and  leave  the  rest  of  his  inheritance  to  follow  the 
general  rules  of  intestacy,  without  further  informing  the  assembly 
of  their  operation.  Nor  were  the  testamentary  powers,  conferred  by 
the  Twelve  Tables,  on  which  the  mancipatory  will  was  founded,  in- 
tended to  be  used  so  as  to  defeat  the  claims  of  sui  heredes  (Muirhead, 
Koman  Law,  §  32).  These  considerations  involve  the  rules  respecting 
the  effect  of  Praeteritio.  If  the  testator's  dispositions  were  valid 
in  spite  of  Praeteritio,  he  would  have  it  in  his  power  to  commit 
a  fraud  upon  the  assembly  by  suppressing  some  element  that  was 
material  to  enable  them  to  form  a  judgement.  Accordingly  Prae- 
teritio  was  made  to  defeat  itself,  in  the  case  of  the  son  by  nullification 
(inutilitas),  in  the  case  of  other  issue  by  Accretio,  §  124.  However, 
although  by  the  Civil  law  Praeterition  avoided  a  will  and  was  not  cured 
by  the  death  of  Praeteritus  before  Testator,  yet  Praetorian  law  only 
regarded  the  date  of  Testator's  death,  and,  if  no  Praeteritus  was  then 
existent,  counteracted  the  nullity  of  the  will  by  Juxta-tabulation. 

After  the  introduction  of  the  mancipatory  will  the  fraud  against 
the  legislature  would  cease  to  be  a  motive  for  the  rule  requiring  the 
testator  to  define  a  Universal  succession  ;  but  the  rule  was  retained  for 
the  sake  of  continuity  and  in  order  to  force  the  testator  to  have  before 
his  mind  a  clear  and  systematic  view  of  his  intentions  by  requiring 
their  simultaneous  expression  in  a  single  act.  It  secured  the  after- 
born  from  oblivion  and  protected  the  son  who  was  falsely  supposed 
to  be  dead  from  the  consequences  of  the  testator's  error.  At  the 
latest  period  the  use  of  Codicils  permitted  to  a  certain  extent  the 
partial  and  fragmentary  disposition  of  a  patrimony,  but  this  was  not 
extended  to  the  principal  point,  the  heredis  institutio.  Ihering,  §  53. 

§  124.  Justinian  abolished  this  accretion  and  equalized  the  sexes, 
enacting  that  the  pretermission  of  any  suus  heres  or  sua  heres  should 
absolutely  vacate  a  will,  and  entitle  to  bonorum  possessio  contra 
tabulas,  like  the  pretermission  of  the  son,  Cod.  6,  28,  4  ;  Inst.  2, 13,  5. 

§  127.  Justinian  abolished  this  distinction  and  required  that  all 
sui  heredes  should  be  disinherited  individually  like  the  son,  ibid. 

§  130.  Afterborn  children  (postumi),  that  is,  children  born  after 
the  making  of  a  will,  are  uncertain  persons,  and,  by  the  general  rule 
that  uncertain  persons  cannot  be  instituted  or  disinherited  (incerta 
persona  heres  institui  non  potest,  Ulpian  22,  4),  ought  to  be  incapable 
of  institution  or  disinheritance,  and,  therefore,  if  they  are  sui  heredes, 
would  necessarily  invalidate  a  will,  because  every  will  is  informal 
when  there  exists  a  suus  heres  who  is  neither  instituted  nor  dis- 
inherited. If  the  suus  heres  was  born  in  the  lifetime  of  the  testator, 
the  revocation  of  the  will  would  not  be  an  irremediable  evil,  because 
the  testator  would  still  have  it  in  his  power  to  make  another  will, 
and  accordingly  in  this  case  the  civil  law  left  the  general  rule  to 

O  2, 


196      SVCCESSIO  PER  VNIVERSITATEM     [n.  §§  123-137. 

operate.  But  if  the  suus  heres  were  born  after  the  death  of  the 
testator,  the  evil  would  be  irreparable,  and  the  testator  would  die 
intestate.  To  prevent  this,  the  civil  law  made  an  exception  to  the 
rule  that  an  uncertain  person  cannot  be  instituted  or  disinherited, 
and  permitted  the  institution  or  disinheritance  of  any  suus  heres  who 
should  be  born  after  the  death  of  the  testator :  and  on  the  authority 
of  the  celebrated  jurist  Aquilius  Gallus,  the  inventor  of  a  form  of 
acceptilation  (3  §  170),  this  power  was  extended  to  the  institution  or 
disinheritance  of  any  afterborn  grandchild  of  the  testator  whose 
father  should  die  in  the  interval  between  the  making  of  the  will  and 
the  death  of  the  testator.  Dig.  28,  2,  29  pr.  Gallus  sic  posse 
institui  postumos  nepotes  induxit :  Si  films  meus  vivo  me  morietur, 
tune  si  quis  mihi  ex  eo  nepos  sive  quae  neptis  post  mortem  meam  in 
decem  mensibus  proximis,  quibus  filius  meus  moreretur,  natus  nata  erit, 
heredes  sunto.  '  Gallus  Aquilius  introduced  the  institution  of  after- 
born  grandchildren  in  the  following  manner :  If  my  son  die  in  my 
lifetime,  then  let  any  grandson  or  granddaughter  by  him  who  may  be 
born  after  my  death  within  ten  months  after  the  death  of  my  son,  be 
my  successor.'  Such  grandchildren  are  called  Postumi  Aquiliani. 

In  respect  of  the  suus  heres  born  after  the  making  of  the  will  but 
in  the  lifetime  of  the  testator,  the  case  which  the  civil  law  left  to  the 
operation  of  the  general  rule,  it  might  certainly  be  sometimes  possible 
to  make  a  new  will  after  his  birth,  but  it  might  sometimes  be  impossible 
or  highly  inconvenient;  and  accordingly  the  lex  Junia  Vellaea,  which 
was  probably  passed  at  the  close  of  the  reign  of  Augustus,  in  its  first 
chapter  permitted  such  sui  heredes,  being  children  of  the  testator,  and 
also  grandchildren  of  the  testator  born  after  their  father's  death  in  the 
lifetime  of  their  grandfather,  to  be  instituted  or  disinherited.  Such 
children  and  grandchildren  were  called  Postumi  Vellaeani  primi 
capitis.  In  its  second  chapter  it  permitted  the  institution  or  dis- 
inheritance of  another  class  of  uncertain  persons,  viz.  quasi-afterborn 
children  (postumorum  loco) ;  grandchildren,  for  instance,  who  were 
born  before  the  making  of  the  will,  but  whose  acquisition  of  the 
character  of  sui  heredes  by  the  decease  of  their  father  is  subsequent 
to  the  making  of  the  will. 

Such  grandchildren  are  called  Postumi  Vellaeani  secundi  capitis. 

Besides  the  Postumi  Aquiliani,  the  Postumi  Vellaeani  primi 
capitis  and  the  Postumi  Vellaeani  secundi  capitis,  the  jurist  Salvius 
Julianus,  who  systematized  the  Edict,  established  the  validity  of  the 
institution  or  disinheritance  of  a  fourth  class,  intermediate  between 
the  Postumi  Vellaeani  of  the  first  and  second  chapter:  grandchildren, 
namely,  who,  like  the  Vellaeani  of  the  first  chapter,  were  born  after 
the  making  of  the  grandfather's  will,  but  who,  like  those  of  the 
second  chapter,  were  born  before  the  death  of  their  father.  Such 


ii.  §§  123-137.]  POSTVMI   SVI  197 

grandchildren  are  not  sui  heredes  to  their  grandfather  at  their  birth, 
but  only  by  succession,  that  is  by  the  subsequent  death  of  their 
father,  like  those  of  the  second  chapter,  Dig.  28,  2,  29,  15. 

The  following  is  a  conspectus  of  the  different  kinds  of  Postumi 
sui,  i.  e.  descendants  who  after  the  making  of  a  will  come  into  the 
immediate  power  of  a  testator,  whether  (A)  children  or  (B)  grand- 
children :  to  remoter  descendants  analogous  principles  will  apply. 

(A)  Children  are  either 

(a)  Veritably  afterborn,  that  is  to  say  born  after  their  father  has 
made  his  will,  whether  after  their  father's  decease,  in  which  case 
the  civil  law  treated  them  as  certae  personae,  or  in  their  father's 
lifetime,  in  which  case  they  form  a  subdivision  of  Velleiani  primi 
capitis : 

(6)  Or  quasi-afterborn  (loco  postumorum),  i.  e.  quasi-sons  or  quasi- 
daughters  by  adrogatio,  adoptio,  legitimatio,  in  manum  conventio. 

(e)  Another  quasi-afterborn  is  the  child  who  falls  under  the 
immediate  power  of  his  soldier  father,  that  is,  becomes  his  suus 
heres,  in  consequence  of  the  death  of  his  grandfather,  in  whose 
power  he  previously  was,  after  his  father  had  made  a  will  of  castrense 
peculium.  Dig.  28,  2,  28,  1. 

(B)  Afterborn  grandchildren  who,  as  self-successors  to  their  grand^ 
father,  require  institution  or  disinheritance  in  his  will  fall  into  four 
classes,  differentiated  by  the  order  of  priority  in  which  certain  events 
occur,  as  hereunder  indicated : 

POSTUMI  AQUILIANI, 

Will  of  grandfather  :  Death  of  father :  Death  of  grandfather : 
Birth  of  grandchild. 

POSTUMI  VELLAEANI  PRIMI  CAPITIS, 

Will  of  grandfather :  Death  of  father  :  Birth  of  grandchild :  Death 
of  grandfather. 

POSTUMI  SALVIANI, 

Will  of  grandfather :  Birth  of  grandchild  :  Death  of  father :  Death 
of  grandfather. 

POSTUMI  VELLAEANI  SECUNDI  CAPITIS, 

Birth  of  grandchild  :  Will  of  grandfather :  Death  of  father :  Death 
of  grandfather. 

The  last  two  cases  depend  on  the  principle  of  successio.  The 
grandchild  is  at  birth  in  the  power  of  his  grandfather,  but  is  not  his 
suus  heres,  so  long  as  there  is  an  intervening  ascendant — the  father — 
in  the  same  power.  On  the  death  of  the  intervening  ascendant  the 
grandchild  is  said  to  succeed  to  his  place,  and  becomes  by  such 
succession  suus  heres  to  his  grandfather. 


198      SVCCESSIO  PER  VNIVERSITATEM     [IT.  §§  123-137. 

The  afterborn  stranger,  though  incapable  at  civil  law  of  being 
appointed  heir  (§  242),  was  relieved  by  the  praetor  who  gave  him 
the  juxta-tabular  possession.  Justinian  gave  him  a  civil  title,  Inst. 
3,  9  pr. 

§  132.  To  the  necessity  of  leaving  some  legacy  to  the  disinherited 
afterborn  sua  heres  (and  not,  as  Blackstone  suggests,  to  the  querela 
inofficiosi)  we  may  perhaps  attribute  the  vulgar  error  in  England 
of  the  necessity  of  leaving  the  heir  one  shilling  in  order  to  cut  him 
off  effectually.  The  querela  inofficiosi  testamenti  was  a  process  by 
which  a  will  formally  valid  could  be  either  totally  or  partly  upset 
at  the  instance  of  certain  near  relations  on  the  ground  that  the 
claims  of  natural  affection  had  been  disregarded  by  the  testator. 
The  querela  inofficiosi  was  not  barred  by  any  legacy,  however  slight, 
being  left  to  such  relation,  but  only  by  giving  him  one  fourth  of  his 
intestate  portion  (§  152,  comm.  ;  Sohm,  §  113.  For  the  changes 
which  Justinian  made  in  the  law  on  this  subject  see  Inst.  2,  1 8,  1 ,  2  ; 
Novella,  18,  1,  and  115).  Thus  even  a  legacy  left  to  an  afterborn 
sua  heres  would  be  unavailing1  to  save  the  will  from  being  inoffi- 
ciosum,  unless  it  amounted  to  one  fourth  of  her  share  by  descent. 
If  no  legacy  at  all  were  left  her,  the  will  would  be  informal  and 
absolutely  void  as  against  her,  unless  she  was  disinherited ;  if  less 
than  a  fourth  of  her  share  were  left,  the  will  would  not  be  abso- 
lutely void  but  voidable,  i  e.  liable  to  be  altogether  or  in  part  over- 
thrown if  she  chose  to  impeach  it  as  inofficiosum. 

§  135.  The  Praeteritio  of  a  descendant  who  is  suus  heres  to 
the  testator  or,  but  for  emancipation,  would  be  suus  heres,  entitles 
the  descendant  to  bonorum  possessio.  If  the  praeteritus  is  films 
suus  heres,  the  will  is  absolutely  void  and  contra-tabular  posses- 
sion is  an  intestate  succession  :  but  if  the  praeteritus  is  emanci- 
patus,  the  effect  of  contra-tabular  possession  is  to  divide  the 
inheritance  between  the  praeteritus  and  other  descendants  who  were 
instituted  heirs,  excluding  both  instituted  strangers  and  disinherited 
sui  heredes. 

Contra-tabular  possession  might  be  claimed  either  by  the  prae- 
teritus himself,  or  by  any  of  the  instituted  sui  heredes.  For  if  an 
instituted  heir  took  less  by  his  institution  than  he  would  by  this 
partial  intestacy,  it  would  be  his  interest  to  claim  contra-tabular 
possession,  commisso  per  alium  edicto,  'the  edict  having  been 
brought  into  operation  by  another,'  viz.  by  another  descendant,  who 
had  been  pretermitted. 

The  portions  of  the  will  that  remained  in  force  were : 

(i)  The  exheredations  :  for  such  of  the  liberi  as  were  duly  dis- 
inherited continued,  as  was  mentioned,  excluded  from  the  inheri- 
tance : 


ii.  §§  138-146.]  Q.  M.  TESTAMENTA  INFIRMENTVR       199 

(2)  The  pupillary  substitutions,  the  nature  of  which  will  hereafter 
(§  179)  be  explained  : 

(3)  Legacies  given  to  certain  conjunctae  personae,  e.  g.  legacies 
to  ascendants  or  descendants  of  the  testator,  or  a  bequest  to  the 
wife  of  the  dower  which  she  had  brought  to  her  husband.     If,  in- 
stead of  making  the  conjuncta  persona  a  legatee,  the  testator  had 
given  his  bounty  in  the  form  of  a  portion  of  the  inheritance  in  which 
the  conjuncta  persona  was  instituted  heir,  such  institution  continued 
valid.     The  validity,  however,  of  such  legacies  and  institutions  was 
by  a  constitution  of  Antoninus  Pius,  Dig.  37,  5,  7,  and  8  pr.  sub- 
jected to  this  limitation,  that  all  the  conjunctae  personae  together 
could  not  take  more  than  a  virilis  portio,  i.  e.  they  were  not  entitled 
to  more  than  fell  to  the  lot  of  each  contra-tabulant  or  claimant  of 
contra-tabular  possession;  with  this  further  proviso,  that  any  con- 
juncta persona  who  is  instituted  heir  of  the  inheritance  in  a  portion 
of  the  heritage  may  retain  as  much  thereof  as  he  would  have  obtained 
by  claiming  contra-tabular  possession,  cf.  Koby,  vol.  i,  p.  250. 

The  partial  intestacy  produced  by  contra-tabular  possession  shows 
that  the  rule  which  we  have  already  quoted,  nemo  pro  parte  testa- 
tus  pro  parte  intestatus  decedere  potest,  must  be  taken  with  some 
reservation.  Although  a  testator  cannot  voluntarily  dispose  of  only 
part  of  his  heritage,  such  partial  disposition  may  be  introduced 
against  the  testator's  intention  by  the  operation  of  law.  The  signi- 
ficance of  the  rule  is  principally  this :  that  if  a  testator  only 
names  for  a  certain  fraction  of  the  inheritance,  or  if  the  fraction  in 
which  one  of  several  heirs  is  instituted  lapses  by  his  decease  before 
the  testator's  death,  the  portion  which  was  undisposed  of  or  lapsed 
does  not  devolve,  as  it  would  in  English  law,  to  the  heirs-at-law  or 
persons  entitled  by  intestacy,  but  goes  by  accrual  (accretio)  to  those 
to  whom  the  remainder  of  the  inheritance  is  left. 

QVIBVS   MODIS  TESTAMENTA   INFIRMENTVR. 

§138.  Si  quis  post  factum  §138.  If  after  making  his  will 

testamentum  adoptauerit  sibi  a  man  adopts  as  son  either  a 

filium  aut  per  populum  eum  person  sui  juris  by  means  of  the 

qui  sui  iuris  est,  aut  per  prae-  people  (in  comitia)  or  one  sub- 

torem  eum  qui  in  potestate  Jecfc  to  the  Power  of  an  ascendant 

parentis  fuerit,  omni  modo  by  means  of  the  Praetor,  his  will 

testamentum  eius  rumpitur  js  mevitably  revoked  as  it  would 

quasi  agnations  sui  heredis.  be1fby  the  subse<iuent  birth  of  a 

List  2, 17,1.  self-successor' 

§  139.  Idem  iuris  est  si  cui  §  139.  The  same  happens  if 

post  factum  testamentum  uxor  after  making  his  will  the  testator 

in  manum  conueniat,  uel  quae  receives  a  wife  into  his  hand,  or 

in  manu  fuit  nubat ;  nam  eo  marries  a  person  who  is  in  his 


200      SVCCESSIO  PER  VNIVERSITATEM     [n.  §§  138-146. 


modo  filiae  loco  ease  incipit  et 
quasi  sua. 

§  140.  Nee  prodest  siue  haec 
siue  ille  qui  adoptatus  est 
in  eo  testamento  sit  institu- 
tus  institutaue ;  nam  de  ex- 
heredatione  eius  superuacuum 
uidetur  quaerere,  cum  testa- 
menti  faciendi  tempore  suorum 
heredum  numero  non  fuerit. 

§  141.  Filius  quoque  qui  ex 
priina  secundaue  mancipatione 
manumittitur,  quia  reuertitur 
in  potestatem  patriam,  rumpitf 
ante  factum  testamentum ;  nee 
prodest,  (si)  in  eo  testamento 
heres  institutus  uel  exheredatus 
fuerit. 

§  142.  Simile  ius  olim  fuit 
in  eius  persona  cuius  nomine 
ex  senatusconsulto  erroris 
causa  probatur,  quia  forte  ex 
peregrina  uel  Latina  quae  per 
errorem  quasi  ciuis  Romana 
uxor  ducta  esset  natus  esset ; 
nam  siue  heres  institutus  esset 
a  parewte  siue  exheredatus, 
siue  uiuo  patre  causa  probatct 
siue  post  mortem  eius,  omni 
modo  quasi  agnatione  rumpe- 
bat  testamentum. 

§  143.  Nunc  uero  ex  nouo 
senatusconsulto  quod  auctore 
diuo  Hadriano  factum  est,  si- 
quidem  uiuo  patre  causa  pro- 
batur, aeque  ut  olim  omni 
modo  rumpit  testamentum ;  si 
uero  post  mortem  patris,  prae- 
teritus  quidem  rumpit  testa- 
mentum, si  uero  heres  in  eo 
scriptus  est  uel  exheredatus, 
non  rumpit  testamentum ;  ne 
scilicet  diligenter  facta  testa- 
menta  rescinderentur  eo  tern- 
pore  quo  renouari  non  pos- 
sent. 

§    144.     Posteriore     quoque 


hand,  as  she  thereby  acquires  the 
status  of  a  daughter  and  becomes 
his  self -successor. 

§  140.  Nor  does  it  avail  to  pre- 
vent the  rupture  that  such  a  wife 
or  adopted  son  was  in  that  will 
instituted  heir,  for  as  to  disin- 
heriting them,  not  having  been 
self-successors  when  the  will  was 
made,  the  question  could  not  then 
have  been  material. 

§  141.  So  a  son  manumitted 
after  the  first  or  second  sale  re- 
verts into  the  power  of  his  father 
and  revokes  a  previous  will,  nor 
does  it  avail  that  he  is  therein 
appointed  heir  or  disinherited. 


§  142.  The  same  rule  formerly 
held  of  the  son  in  whose  behalf 
the  decree  of  the  senate  allows 
proof  of  error,  if  he  was  born 
of  an  alien  or  Latin  mother 
who  was  married  in  the  mistaken 
belief  that  she  was  a  Eoman:  for 
whether  he  was  appointed  heir 
by  his  father  or  disinherited,  and 
whether  the  error  was  proved  in 
his  father's  life  or  after  his  death, 
in  every  case  the  will  was  revoked 
as  by  the  subsequent  birth  of  a 
self-successor. 

§  143.  Now,  however,  by  a 
recent  decree  of  the  senate,  made 
on  the  proposition  of  the  late 
emperor  Hadrian,  if  the  father  is 
alive  when  the  error  is  proved, 
the  old  rule  obtains  and  the  will 
is  in  every  case  avoided ;  but 
when  the  error  is  proved  after  the 
father's  death,  if  the  son  was 
passed  over  in  silence,  the  will  is 
revoked  ;  but  if  he  was  appointed 
heir  or  disinherited  the  will  is 
not  revoked  ;  in  order  that  care- 
fully executed  wills  should  not 
be  rescinded  at  a  period  when  re- 
execution  is  impossible. 

§  144.  A  subsequent  will  duly 


IT.  §§  138-146.]  Q.  M.  TESTAMENTA  INFIRMENTVR       201 


testamento  quod  iure  factum 
est  superius  rumpitur.  nee  in- 
terest an  extiterit  aliquis  ex  eo 
heres,  an  non  extiterit ;  hoc 
enim  solum  spectatur,  an  exi- 
stere  potuerit.  ideoque  si  quis 
ex  posteriore  testamento  quod 
iure  factum  est  aut  noluerit 
heres  esse,  aut  uiuo  testatore 
aut  post  mortem  eius  antequam 
hereditatem  adiret  decesserit, 
aut  per  cretionem  exclusus  fue- 
rit,  aut  condicione  sub  qua 
heres  mstitutus  est  defectus  sit, 
aut  propter  caelibatum  ex  lege 
Julia  summotus  fuerit  ab  here- 
ditate :  quibus  casibus  pater 
familias  intestatus  moritur, 
nam  et  prius  testamentum  non 
ualet  ruptum  a  posteriore,  et 
posterius  aeque  nullas  uires 
habet,  cum  ex  eo  nemo  heres 
_extiterit.  Inst.  2, 17,  2. 

§  145.  Alio  quoque  modo 
testamenta  iure  facta  infirmaw- 
tur,  ueluti  (cum)  is  qui  fecerit 
testamentum  capite  derninutus 
sit;  quod  quibus  modis  accidat, 
primo  commentario  relatum 
est.  Inst.  2, 17, 4. 

§  146.  Hoc  autem  casu  inrita 
fieri  testamenta  dicemus,  cum 
alioquin  et  quae  rumpuntwr 
inrita  fiant,  (et  quae  statim  ab 
initio  non  iure  fi.unt  inrita 
sint ;  sed  et  ea  quae  iure  facta 
suirt  et  postea  propter  capitis 
deminutionem  inrita  fiunt} 
possunt  nihilo  minus  rupta 
dici.  sed  quia  sane  commodius 
erat  singulas  causas  singulis 
appellationibus  distingui,  ideo 
quaedam  non  iure  fieri  dicuntur, 
quaedam  iure  facta  rumpi  uel 
inrita  fieri. 

Inst.  2, 17,  5. 


executed  is  a  revocation  of  a  prior 
will,  and  it  makes  no  difference 
whether  an  heir  ever  actually 
takes  under  it  or  no;  the  only 
question  is,  whether  one  might. 
Accordingly,  whether  the  heir 
instituted  in  a  subsequent  will 
duly  executed  declines  to  be 
heir,  or  dies  in  the  lifetime  of 
the  testator,  or  after  his  death 
before  accepting  the  inheritance, 
or  is  excluded  by  expiration  of 
the  time  allowed  for  deliberation, 
or  by  failure  of  the  condition 
under  which  he  was  instituted,  or 
by  celibacy  as  the  lex  Julia  pro- 
vides ;  in  all  these  cases  the  tes- 
tator dies  intestate,  for  the  earlier 
will  is  revoked  by  the  later 
one,  and  the  later  one  is  inope- 
rative, since  no  one  becomes  heir 
under  it. 


§  145.  There  is  another  event 
whereby  a  will  duly  executed  may 
be  invalidated,  namely,  the  tes- 
tator's undergoing  a  loss  of  status : 
how  this  may  happen  was  ex- 
plained in  the  preceding  book. 

§  146.  In  this  case  the  will 
may  be  said  to  be  rescinded  ;  for 
although  both  those  wills  that 
are  revoked  and  those  that  are 
not  from  the  first  made  in  proper 
form  may  be  said  to  be  rescinded, 
and  those  that  are  made  in  proper 
form  but  subsequently  annulled 
by  loss  of  status  may  be  said  to 
be  revoked,  yet  as  it  is  convenient 
thatdifferentgrounds  of  invalidity 
should  have  different  names  to 
distinguish  them,  we  will  say 
that  some  wills  are  not  made  in 
proper  form,  others  made  in  pro- 
per form  are  either  revoked  or 
rescinded. 


§  138.     A  will  may  be  void  from  the  first  because  it  is  not  duly 


202      SVCCESSIO  PER  VNIVERSITATEM     [n.  §§  138-146. 

made — testamentum  nullum,  injustum,  non  jure  factum — or  it  may 
be  avoided  by  some  subsequent  circumstance— testamentum  ruptum 
§§  138,  144,  irritum  §  146,  destitutum — or  it  may  be  upset  as  being 
unduteous — inofficiosum.  A  will  is  destitutum,  'cum  ex  eo  nemo 
heres  extiterit,'  §  144.  A  will  may  be  revoked  or  ruptured  by  a  sub- 
sequent will,  but  not  by  a  codicil.  The  tearing  up  or  destruction  of 
a  will  does  not  revoke  it,  unless  this  is  done  by  the  testator  '  animo 
revocandi.'  See  §  151,  comm.  The  innovations  of  Justinian  changed 
the  effects  of  adoption.  Under  his  enactment,  if  a  child  is  adopted 
by  an  ascendant  the  old  rules  obtain  ;  but  a  person  adopted  by  a 
stranger  only  acquires  rights  in  the  adoptive  family  in  case  of 
the  adopter's  intestacy,  and  therefore  need  not  be  instituted  or 
disinherited  by  the  adopter  ;  he  retains,  however,  his  rights  in 
his  natural  family,  and  therefore  must  be  instituted  or  disinherited 
in  the  will  of  his  natural  parent.  1  §§  97-107,  comm. 

§  139.  By  English  law  the  only  circumstance  by  which  a  will  is 
avoided  (besides  revocation,  cancellation,  execution  of  a  later  will) 
is  the  marriage  of  the  testator,  and  this  operates  universally,  irre- 
spectively of  the  birth  of  children.  Marriage  without  manus,  which 
was  usual  in  the  time  of  Gaius,  had  no  effect  on  a  will. 

§  140.  This  was  reversed  before  the  time  of  Justinian,  for  we  find 
in  Dig.  28,  3,  18  that  the  institution  of  the  future  adoptive  son  saves 
a  will  from  being  ruptured  by  adoption.  Indeed,  considering  that 
the  object  of  the  lex  Vellaea  was  to  save  wills  from  rupture,  we  may 
be  surprised  that  the  extension  of  its  provisions  from  the  natural 
postumi  to  the  artificial  postumi  or  quasi  postumi  had  not  been 
established  in  the  days  of  Gaius. 

§  141.  Cf.  1  §§  132-136. 

§  142,  As  to  erroris  causae  probatio  see  1  §  67. 

BONOEVM   POSSESSIO   SECVNDVM   TABVLAS. 

§  147.  Nontamen  per  omnia  §  !47.  Wills  are  not  altogether 

inutilia    sunt     ea    testamenta  inoperative  either  when  originally 

quae    uel   ab    initio  non   iure  informal  or  when  though  at  first 

facta  sunt  uel  iure  facta  postea  m*de  in  P™Per  fo™  ^  were 

inrita    facta    aut   rupta    sunt.  subsequently    rescinded    or    re- 

,•           •      •  voked  ;  for  if  the  seals  ot  seven 

nam  si  septem  tedium  sigms  ^^  are  ^          the  ^ 

signata  sint  testamenta,  potest  mentaryheir  is entitled  todemand 

scnptus  heres  secundum  tabu-  possession  in  accordance  with  the 

las  bonorum  possessionem  pe-  will>  if  the  testator  was  a  citizen 

tere,  si  modo  defunctus  testator  of  Rome  an(j  sui  juris  at  the  time 

et  ciuis  Romanus  et  suae  pote-  Of  his  death  ;  but  if  the  cause  of 

statis    mortis    tempore    fuerit.  nullity  was,  say,  the  testator's  loss 

nam  si  ideo  inritum  factum  sit  of  citizenship,  or  loss  of  liberty, 

testamentum,  quod  puta  ciui-  or  adoption  and  he  dies  subject 


ii.  §§  147-151.]  BON.  POSS.  SECVNDVM  TABVLAS          203 


tatem  uel  etiam  libertatem 
testator  amisit,  aut  is  in  ado- 
ptionem  se  dedit  (et)  mortis 
tempore  in  adoptiui  patris  po- 
testate  fuit,  non  potest  scriptus 
heres  secundum  tabulas  bono- 
rum  possessionem  petere. 

Inst.2, 17,4. 

§  148.  (Itaque  qui}  secun- 
dum tabulas  testamenti  quae 
aut  statiin  ab  initio  non  iure 
factae  sint,  aut  iure  factae 
postea  ruptae  uel  inritae  erunt, 
bonorum  possessionem  acci- 
piunt,  si  modo  possunt  heredi- 
tatem  optinere,  habebunt  bono- 
rum possessionem  cum  re;  si 
uero  ab  iis  auocari  hereditas 
potest,  habebunt  bonorum  pos- 
sessionem sine  re. 

§  149.  Nam  si  quis  heres  iure 
ciuili  institutus  sit  uel  ex  primo 
uel  ex  posteriore  testamento, 
uel  ab  intestato  iure  legitimo 
heres  sit,  is  potest  ab  iis  here- 
ditatem  auocare  ;  si  uero  nemo 
sit  alius  iure  ciuili  heres,  ipsi 
retinere  hereditatem  possunt, 
nee  ullum  ius  aduersus  eos 
habent  cognati  qui  legitimo 
iure  deficiuntur. 

§  149  a.  AliquaraZo  tamen, 
sicut  supra  |  quoque  notaui- 
mus,  etiam  legitimis  heredibus 
potiores  scripti  habentur,  veluti 
si  ideo  non  iure  \  factum  sit 
testamentum,  quod  familia  non 
uenierit  aut  nun  cupationis 
uerba  testator  locutus  non  sit ; 

j «(/nati  petant  heredi- 

tatein 1  ex  coustitutione 


§150. 
lulia 


ueri- 


-lege 


possessores- 


eja  lege  bona  caduca  fiunt  et  ad 
populum  deferri  |  iubentur,  si 
defuncto  nemo . 


to  his  adoptive  father's  power,  the 
heir  instituted  in  the  will  is  barred 
from  demanding  possession  in  ac- 
cordance with  the  will. 


§  148.  Persons  granted  posses- 
sion in  accordance  with  a  will 
either  originally  not  made  in  due 
form  or  originally  made  in  due 
form  and  subsequently  revoked  or 
rescinded,  have,  if  only  they  can 
maintain  their  right  to  the  inheri- 
tance, effective  possession  of  it 
(bonorum  possessio  cum  re) ;  but  if 
they  can  be  deprived  of  the  property 
by  an  adverse  claimant,  the  grant 
of  possession  to  them  is  ineffective 
(bonorum  possessio  sine  re), 

§  149.  For  an  heir  instituted 
according  to  jus  civile  either  by 
an  earlier  or  later  will,  or  a  statu- 
tory heir  by  intestacy,  can  evict 
the  mere  bonorum  possessor  ac- 
cording to  the  will  from  the  in- 
heritance; but  in  default  of  such 
claim  on  the  part  of  a  civil  heir, 
such  possessor  according  to  the 
will  can  retain  the  inheritance,  and 
cannot  be  deprived  of  it  by  cog- 
nates, these  having  no  civil  title. 

§  149  a.  Sometimes,  however, 
an  heir  with  a  civil  title  is  post- 
poned to  an  irregularly  appointed 
heir ;  for  instance,  if  the  irregu- 
larity was  only  the  absence  of 
mancipation  or  nuncupatory  pub- 
lication, since  if  the  agnates  of  the 
deceased  claim  the  inheritance, 
they  may  be  repelled  by  the  plea 
of  fraud,  according  to  the  consti- 
tution of  the  Emperor  Antoninus. 

§  150.  Possession  according  to 
the  will  is  not  defeated  by  the  lex 
Julia,  underwhich  law  a  condition 
of  caducity  or  devolution  to  thefis- 
cus  is  the  absence  of  every  kind  of 
heir,  whether  civil  or  praetorian. 


204      SVCCESSIO  PER  VNIVERSITATEM     [n.  §§  147-151. 


§  151.  |  Potest  ut  iure  facta 
testamenta  contraria  uoluntate 
|  infirmeTitur.  apparet  (autem) 
non  posse  QX  eo  solo  infirma  ri 
testamentum,  quod  postea  te- 
stator id  noluerit  ualere,  usque 
adeo  ut  si  linum  eius  incident, 
nihilo  minus  iure  ciuili  ualeat. 
quin  etiam  si  deleuerit  quoque 
&ut  conbusserit  tabulas  testa-' 
menti,  nihilo  minus  {non}  de- 
sinent  ualere  quae  ibi  fuerunt 
scripta,  licet  eorum  probatio 
difficilis  sit. 

§  151  a.  Quid  ergo  est?  si 
quis  ab  intestato  bonorum  pos- 
sessionem  petieri£  et  is  |  qui  ex 
eo  testamento  heres  est  petat 

hereditatem, 1 |- 

perueniat  hereditas  ;  et  hoc  ita 
rescripto  imperatoris  Antonini 
significatur. 


§  151.  A  validly  executed  will 
may  be  invalidated  by  a  contrary 
expression  of  will :  but  a  will  is 
not,  it  is  clear,  invalidated  by  the 
mere  intention  of  revocation.  And 
consequently,  in  spite  of  the  testa- 
tor's cutting  the  strings  by  which 
it  is  tied,  it  nevertheless,  at  civil 
law,  continues  valid  :  and  his  era- 
sure or  burning  of  the  dispositions 
does  not  render  them  invalid, 
though  it  makes  them  difficult  of 
proof. 


§  151  o.  What  then  is  the 
result  ?  If  a  claimant  demand 
bonorum  possessio  by  intestacy, 
and  a  testamentary  heir  under 
such  circumstances  demand  the 
civil  inheritance  under  the  will, 
the  latter  is  repelled  by  the  plea 
of  fraud:  and  if  no  one  should 
demand  bonorum  possessio  by 
title  of  intestacy,  the  testamentary 
heir  is  superseded  by  the  fiscus 
as  unworthy  of  the  succession  in 
order  to  carry  the  testator's  in- 
tention of  excluding  him  into 
effect :  and  this  was  enacted  by  a 
rescript  of  the  Emperor  (Marcus 
Aurelius)  Antoninus. 


§  147.  The  validity  of  a  testament  implies,  strictly  speaking,  the 
continuance  of  a  testator's  intention,  and  therefore  of  his  capacity  of 
intention  (testamenti  factio),  from  its  first  declaration  to  the  moment 
of  his  death.  Accordingly  an  intermediate  capitis  diminutio  avoided 
the  will  invalid  (irritum)  at  civil  law,  §  146.  The  praetor,  however, 
only  looked  at  the  first  and  last  moments,  and,  if  at  these  periods  the 
testator  had  testamenti  factio,  sustained  his  intentions  by  granting 
possession  according  to  the  will,  although  he  had  undergone  capitis 
diminutio  minima  in  the  intervening  period. 

So  at  civil  law  a  will  was  revoked  (ruptum)  by  after-birth  (agnatio) 
of  a  self- successor,  §  138  ;  but  if  he  died  before  the  testator,  the 
praetor  sustained  the  will  by  granting  possession  according  to  the 
will  to  the  heir  instituted  in  it.  Dig.  28,  3,  12  pr.  Postumus 
praeteritus,  vivo  testatore  natus,  decessit :  licet  juris  scrupulositate 
nimiaque  subtilitate  testamentum  ruptum  videatur,  attamen  si 


ii.  §§  147-151.]  BON.  POSS.  SECVNDVM  TABVLAS    205 

signatum  fuerit  testamentum,  bonorum  possessionem  secundum 
tabulas  accipere  heres  scriptus  potest,  remque  obtinebit,  ut  et  divus 
Hadrianus  et  Imperator  noster  rescripserunt.  In  order  that  posses- 
sion in  accordance  with  the  will,  granted  when  a  will  had  been 
avoided  (irritum)  by  intervening  loss  of  capacity,  might  be  efficacious 
(cum  re),  i.  e.  not  defeasible  by  the  claimant  entitled  at  civil  law  by 
intestacy,  it  was  necessary  that  the  testator  on  reacquiring  capacity 
should  confirm  his  will  by  a  codicil  or  other  writing  (codicillis  aut 
aliis  litteris),  Dig.  37,  11,  11,  2. 

§  148.  There  was  no  ipso  jure,  or  necessarius,  bonorum  possessor, 
corresponding  to  the  heres  necessarius,  §  152,  with  whom  delatio 
and  adquisitio  hereditatis  were  coincident :  all  bonorum  possessores 
corresponded  to  the  other  class  of  heres,  the  heres  extraneus  or 
voluntarius,  with  whom  adquisitio  was  distinct  from  delatio  here- 
ditatis, and  required  a  voluntary  act  (aditio).  That  is  to  say,  the 
person  called  (vocatus)  by  the  praetorian  edict  to  the  succession 
forfeited  his  right  to  succeed  unless  he  made  his  claim  (agnitio, 
petitio,  admissio  bonorum  possessionis)  within  a  certain  period,  for 
ascendants  and  descendants  a  year,  for  others  100  dies  utiles  from  the 
date  of  the  vocatio  (delatio).  On  the  claim  under  the  edict  being  made, 
the  grant  (datio)  of  bonorum  possessio  followed  as  a  matter  of  course 
without  any  judicial  investigation  (causae  cognitio).  It  was  a  mere 
formality,  a  certificate  of  the  magistrate,  the  praetor  or  praeses 
provinciae,  that  the  agnitio  had  been  made  within  the  allotted 
period,  before  the  expiration  of  the  term  allowed  for  deliberation. 
If  any  real  controversy  arose,  it  was  decided  by  one  of  two  actions, 
hereditatis  petitio,  or  the  Interdict  Quorum  bonorum.  If  the 
claimant  relied  on  his  title  at  civil  law,  he  sued  by  hereditatis 
petitio ;  if  he  relied  on  the  title  given  him  by  the  praetorian  edict, 
he  sued  by  the  Interdict  Quorum  bonorum.  See  4  §144.  If  defeated 
in  either  of  these  proceedings,  he  gained  nothing  by  having  obtained 
the  formal  grant  of  praetorian  succession — he  had  only  bonorum 
possessio  sine  re. 

§  149  a.  A  praetorian  title  was,  as  a  general  rule,  sine  re,  if  a  civil 
title  was  opposed  to  it,  but  the  constitution  of  the  Antonine  emperor, 
probably  Marcus  Aurelius,  mentioned  here  and  in  §  120,  made  an 
important  inroad  on  this  principle. 

§  150.  Originally  when  a  heritage  was  vacant  from  the  failure  of 
intestate  successors,  Ulpian  28,  7,  or  from  the  neglect  of  an  heir  to 
enter  upon  it,  §  52,  any  stranger  might  take  possession  and  acquire  by 
usucapio,  but  this  right  was  rendered  ineffectual  by  Hadrian's  Senatus- 
consultum,  §  57.  The  lex  Julia  de  Maritandis  ordinibus,  which  is 
the  statute  here  referred  to,  was  passed  A.  D.  4  ;  for  an  account  of  its 
purport  and  of  the  meaning  of  the  term  caduca  see  §  190  and  §  206, 


206      SVCCESSIO  PER  VNIVERSITATEM     [ir.  §§  147-151. 

comm.  Besides  its  rights  to  caduca  under  this  statute  the  public 
treasury  or  that  of  the  Emperor  could  claim  all  inheritances  left 
without  an  heir  (bona  vacantia).  The  state  did  not  become  necessary 
successor  (ipso  jure)  but  had  the  delatio  (ad  populum  deferri  jubentur), 
i.  e.  had  the  right  of  deliberation  and  acceptance  or  repudiation,  Inst. 
3,  11,  1.  As  universal  successor  the  state  could  recover  from  the 
unentitled  occupant  by  Hereditatis  petitio,  Dig.  5,  3,  20,  7,  and  could 
transfer  its  rights  to  a  purchaser,  as  if  the  transfer  were  made  under 
the  Sc.  Trebellianum,  1.  c.  54  pr.  (cf.  §  253). 

The  treasury  was  bound  to  pay  all  codicillary  legacies  and  trusts : 
and  succeeded  to  all  the  obligations  active  and  passive,  in  other 
words,  to  all  the  personal  rights  and  personal  duties,  of  the  heritage- 
leaver  :  but  like  other  successors  in  later  times,  under  the  law  of 
Justinian,  might,  by  taking  advantage  of  the  Benefice  of  inventory, 
confine  its  liability  to  the  extent  of  the  assets,  §§  158-162,  comm. 
In  the  event  of  the  repudiation  of  the  succession  by  the  Fiscus,  the 
goods  were  sold  for  the  benefit  of  creditors.  Vangerow,  §  564. 

Gains  probably  here  means,  though  the  MS  is  defective,  that 
although  a  grant  of  bonorum  possessio  might  be  rendered  ineffective 
(sine  re)  in  consequence  of  the  superior  claims  of  a  person  with 
a  civil  title  by  whom  the  possessor  could  be  evicted,  the  fiscus  had 
no  title  to  an  inheritance  under  the  lex  Julia,  if  the  deceased,  though 
without  a  civil  successor,  had  left  a  bonorum  possessor.  (Cf.  note  on 
§  150  in  Muirhead's  Gaius.) 

§  151.  The  Eupture  (ruptio)  of  a  will  was  produced  by  two 
circumstances:  (i)  Agnatio  postumi,  the  subsequent  birth  of  a  self- 
successor,  or  the  coming  into  existence  of  a  quasi  postumus,  §  1 39  : 
and  (2)  Revocation,  §§  138-146,  comm.  On  the  principle,  Nihil  tarn 
naturale  est  quam  eo  genere  quidque  dissolvere  quo  colligatum  est 
(Dig.  50,  17,  35),  the  most  formal  and  originally  the  only  mode  of 
revoking  a  will  would  be  the  execution  of  a  subsequent  will.  Another 
mode  of  Revocation  sanctioned  by  Justinian  depended  on  two  con- 
ditions: a  declaration  attested  by  three  witnesses  or  made  in  the 
form  of  a  record  or  protocol  deposited  in  the  archives  of  a  court,  and 
the  expiration  of  ten  years  from  the  date  of  the  execution  of  the  will. 
Cod.  6,  23,  27. 

The  mere  cancellation  or  obliteration  of  a  will,  with  the  intention 
of  revoking  it,  was  an  informal  Revocation  and  left  the  will  valid  at 
civil  law :  the  will,  however,  was  not  allowed  to  hold  good  against 
this  evidence  of  the  testator's  change  of  intention.  The  rescript  of 
Marcus  Aurelius  A.  D.  166  to  this  effect,  to  which  Gaius  alludes 
§  151  a,  is  preserved  in  the  Digest,  28,  4,  3. 

Justinian  ordained  that  a  will  should  be  perfectly  revoked  and 
completely  avoided  by  the  cutting  of  the  cords,  or  removal  of  the 


ii.  §§  147-151.]  BONA  EREPTORIA  207 

seals,  or  other  intentional  destruction  of  the  outward  signs  of  its  due 
solemnization,  Cod.  6,  23,  30.  English  law,  as  laid  down  in  1  Viet. 
c.  26  §  20  and  interpreted  in  the  celebrated  case  of  Lord  St.  Leonards, 
L.  K.  1  P.  D.  154,  seems  to  be  in  conformity  with  Eoman  law  on  the 
subject  of  unintentional  erasure  or  destruction  of  a  will. 

§  151  a.  Ereption  for  indignitas,  an  institution  which  survived  in  the 
legislation  of  Justinian,  Dig.  34,  9,  Cod.  6,  35,  must  be  distinguished 
from  the  lapse  of  a  testamentary  disposition  under  the  lex  Julia  (cadu- 
cum),  §§185-190,  comm.  In  the  latter  case  there  was  want  of  capacitas, 
as  opposed  to  want  of  testamenti  factio  passiva,  on  the  part  of  honoratus. 
In  the  case  of  the  indignus  there  was  not  even  incapacitas  but  only 
liability  to  deprivation.  Some  grounds  of  Ereption  were  common  to 
the  heir  and  legatee,  others  peculiar  to  the  heir,  others  peculiar  to  the 
legatee.  The  forfeiture  of  the  inheritance  or  legacy  was  sometimes 
in  favour  of  the  Fiscus,  sometimes  in  favour  of  other  persons,  usually 
of  those  who  would  have  taken  but  for  the  disposition  in  favour  of 
indignus. 

Instances  of  grounds  for  which  either  heir  or  legatee  forfeited  their 
interest  to  the  Fiscus  were :  undertaking  a  secret  unlawful  trust, 
coercion  of  the  testator  in  respect  of  his  will,  killing  the  testator  or 
neglect  to  avenge  his  death,  wrongful  impeachment  of  his  will  for 
inofficiositas,  &c. 

Grounds  for  which  their  shares  were  forfeited  to  other  persons  than 
the  Fiscus  were  :  refusal  of  the  office  of  guardian  when  the  prospect 
of  the  discharge  of  this  duty  was  the  motive  of  the  testator's  bounty, 
refusal  to  undertake  the  education  of  an  infant  child  of  the  testator, 
neglect  of  the  testator's  burial,  &c. 

Grounds  on  which  the  heir  alone  forfeited  the  whole  or  part  of  his 
inheritance  to  the  Fiscus  were  :  concealment  of  a  portion  of  the  here- 
ditaments in  order  to  defraud  a  legatee  (whereupon  the  heir  forfeited 
the  fourth  which  he  was  entitled  to  retain  from  such  legacy  by  the 
lex  Falcidia),  the  discovery  that  though  putative  son  he  was  not 
a  genuine  son  of  the  testator,  the  deliberate  cancellation  of  his  name 
by  the  testator,  the  imperfect  execution  of  a  subsequent  will  in 
which  he  was  excluded  from  the  heritage,  a  codicillary  declaration 
of  his  unworthiness  to  inherit,  &c. 

Grounds  on  which  an  heir  forfeited  his  portion  to  persons  other 
than  the  Fiscus  were  :  neglect  on  the  part  of  a  mother  to  demand 
a  guardian  for  her  infant  child,  a  second  marriage  by  a  mother  who 
herself  is  guardian  before  she  has  caused  another  guardian  to  be  sub- 
stituted, neglect  of  a  lunatic  testator,  neglect  to  ransom  the  testator, 
criminal  prosecution  of  testator,  &c. 

Grounds  exclusively  affecting  a  legatee  and  that  in  favour  of  the  heir 
are  theft  from  the  heritage  and  concealment  of  the  testator's  will. 


208      SVCCESSIO  PER  VNIVERSITATEM     [n.§§  152-173. 


DE  HEREDVM  QVALITATE  ET  DIFFERENTIA. 


§  152.  Heredes  autem  aut 
necessarii  dicuntur  aut  sui  et 
necessarii  aut  extranei. 

Inst.  2, 19  pr. 

§  153.  Necessarius  heres  est 
seruus  cum  libertate  heres  in- 
stitutus,  ideo  sic  appellatus, 
quia  siue  uelit  siue  nolit,  omni 
modo  post  mortem  testatoris 
protinus  liber  et  heres  est. 

Inst.  2,  19,1. 

§  154.  Vnde  qui  facultates 
suas  suspectas  habet,  solet 
seruum  suum  primo  aut  se- 
cundo  uel  etiam  ulteriore  gradu 
liberum  et  heredem  instituere, 
ut  si  creditoribus  satis  non 
fiat,  potius  huius  heredis  quam 
ipsius  testatoris  bona  uenean£, 
id  est  ut  ignominia  quae  accidit 
ex  uenditione  bonorum  hunc 
potius  heredem  quam  ipsum 
testatorem  contingat ;  quam- 
quam  apud  Fufidium  Sabino 
placeat  eximendum  eum  esse 
ignominia,  quia  non  suo  uitio 
sed  necessitate  iuris  bonorum 
uenditionem  pateretur;  sed  alio 
iure  utimur.  Inst.  1.  c. 

§  155.  Pro  hoc  tamen  in- 
commodo  illud  ei  commodum 
praestatur,  ut  ea,  quae  post 
mortem  patroni  sibi  adquisierit, 
siue  ante  bonorum  uenditionem 
siue  postea,  ipsi  reseruentur ; 
et  quamuis  pro  portione  bona 
uenierint,  iterum  ex  hereditaria 
causa  bona  eius  non  uenient, 
nisi  si  quid  ei  ex  hereditaria 
causa  fuerit  adquisitum,  uelut 
si  f  Latinus  adquisierit,  locu- 
pletior  factus  sit ;  cum  cete- 
rorum  hominum  quorum  bona 
uenierint  pro  portione,  si  quid 


§  152.   Heirs  are  either  neces- 
sary successors  or  necessary  self- 
successors  or  external  successors. 
\ 

§  153.  A  necessary  successor  is 
a  slave  instituted  heir  with  free- 
dom annexed,  so  called  because, 
willing  or  unwilling,  without  any 
alternative,  on  the  death  of  the 
testator  he  immediately  has  his 
freedom  and  the  succession. 

§154.  For  when  a  man's  affairs 
are  embarrassed,  it  is  common  for 
his  slave,  either  in  the  first  place 
(institutio)  or  as  a  substitute  in 
the  second  or  any  inferior  place 
(substitutio),  to  be  enfranchised 
and  appointed  heir,  so  that,  if  the 
creditors  are  not  paid  in  full,  the 
property  may  be  sold  rather  as  be- 
longing to  this  heir  than  to  the 
testator,  the  ignominy  of  insol- 
vency thus  attaching  to  the  heir  in- 
stead of  to  the  testator;  though,  as 
Fufidius  relates,  Sabinus  held  that 
he  ought  to  be  exempted  from  ig- 
nominy, as  it  is  not  his  own  fault, 
but  legal  compulsion,  that  makes 
him  insolvent;  this,  however,  is 
not  in  our  view  the  law. 

§  155.  To  compensate  this  dis- 
advantage he  has  the  advantage 
that  his  acquisitions  after  the 
death  of  his  patron,  and  whether  be- 
fore or  after  the  sale,  are  kept  apart 
for  his  own  benefit,  and  although 
a  portion  only  of  the  debts  is 
satisfied  by  the  sale,  he  is  not 
liable  to  a  second  sale  of  his  after- 
acquired  property  for  the  debts  of 
the  testator,  unless  he  gain  any- 
thing in  his  capacity  as  heir,  as  if 
he  inherit  the  property  of  a  Lati- 
nus  Junianus  [another  freedman 
of  the  testator]  ;  whereas  other 
persons,  who  only  pay  a  dividend, 


ii.  §§152-1 73.]    DE  HEREDVM  QVALITATE 


postea  adquirant,  etiam  saepius 
eorum  bona  uemre  sclent. 

Inst.  1.  c. 

§  156.  Sui  autem  et  neces- 
sarii  heredes  sunt  uelut  filius 
filiaue,  nepos  neptisue  ex  filio, 
(ety  deinceps  ce£eri  qui  modo 
in  potestate  morientis  fuerunt. 
sed  uti  nepos  neptisue  su^s 
heres  sit,  non  sufficit  eum  in 
potestate  aui  mortis  tempore 
fuisse,  sed  opus  est  ut  pater 
quoque  eius  uiuo  patre  suo 
desierit  suus  heres  esse  aut 
morte  interceptus  aut  qualibet 
ratione  liberatus  potestate ;  turn 
enim  nepos  neptisue  in  locum 
sui  patris  succedunt. 

Inst.  2, 19, 2. 


§  157.  Sed  sui  quidem  heredes 
ideo  appellantur,quia  domestici 
heredes  sunt  et  uiuo  quoque 
parente  quodammodo  Domini 
existimantur ;  undo  etiam  si 
quis  intestatus  '  mortuus  sit, 
prima  causa  est  in  successiqne 
liberorum.  necessarii  uero  ideo 
dicuntur,  quia  omni  modo, 
(sine}  uelint  si\ie  (nolint,  tarn) 
ab  intestate  quam  ex  testa- 
mento  heredes  fiunt.  Inst.  1.  c. 

§  158.  Sed  his  praetor  per- 
inittit  abstinere  se  ab  here- 
ditate,  ut  potius  parentis  bona 
ueneant.  Inst.  1.  c. 

§  159.  Idem  iuris  est  et  (m) 
uxoris  persona  quae  in  manu 
est,  quia  filiae  loco  est,  et  in 
nuru  quae  in  manu  filii  est, 
quia  neptis  loco  est. 

§  160.  Quin  etiam  similiter 
abstinendi  pofestatem  facit 
praetor  etiam  ei  qui  in  causa 


on  subsequently  acquiring  any 
property,  are  liable  to  subsequent 
sales  again  and  again. 

§  156.  Sui  et  necessarii  heredes 
are  such  as  a  son  or  daughter,  a 
grandson  or  granddaughter  by 
the  son,  and  further  lineal  de- 
scendants, provided  that  they 
were  under  the  power  of  the  an- 
cestor when  he  died.  To  make 
a  grandson  or  granddaughter  self- 
successor  it  is,  however,  not 
sufficient  that  they  were  in  the 
power  of  the  grandfather  at  the 
time  of  his  death,  but  it  is  further 
requisite  that  their  father  in  the 
life  of  the  grandfather  shall  have 
ceased  to  be  self-successor, 
whether  by  death  or  by  any 
mod.e  of  liberation  from  parental 
power,  as  the  grandson  and 
granddaughter  then  succeed  to 
the  place  of  the  father. 

§  157.  They  are  called  sui 
heredes  because  they  are  family 
heirs,  and  even  in  the  lifetime  of 
the  parent  are  deemed  to  a  certain 
extent  co-proprietors  ;  wherefore 
in  intestacy  the  first  right  of 
succession  belongs  to  the  children. 
They  arp  called  necessary,  because 
they  have  no  alternative,  but, 
willing  or  unwilling,  both  in 
testacy  and  intestacy,  they  be- 
come heirs. 

§  158.  The  praetor,  however, 
permits  them  to  abstain  from  the 
succession,  and  leave  the  estate  of 
the  ancestor  to  be  sold  as  an  in- 
solvent one. 

§  159.  The  same  rule  governs 
a  wife  in  the  hand  of  a  husband, 
for  she  is  on  the  footing  of  a 
daughter,  and  a  son's  wife  in  the 
hand  of  the  son,  for  she  is  on  the 
footing  of  a  granddaughter. 

§160.  A  similar  power  of  absten- 
tion is  granted  by  the  praetor  to 
a  person  held  in  mancipium  when 


210      SVCCESSIO  PER  VNIVERSITATEM    [n.  §§  152-173. 


mancipii  est,  (si)  cum  libertate 
heres  institutus  sit,  quamuis 
necessarius,  non  etiam  suus 
heres  sit,  tamquam  seruus. 

§  161.  Ceteri  qui  testatoris 
iuri  subiecti  non  sunt  extranei 
heredes  appellantur.  itaque 
liberi  quoque  nostri  qui  in 
potestate  nostra  non  sunt  here- 
des  a  nobis  instituti  [sicut]  ex- 
tranei  uidentur.  qua  de  causa 
et  qui  a  matre  heredes  insti- 
tuuntur  eodem  numero  sunt, 
quia  feminae  liberos  in  pote- 
state non  habent.  serui  quo- 
que qui  cum  libertate  heredes 
instituti  sunt  et  postea  a  domi- 
no manumissi,  eodem  numero 
habentur.  Inst.  2, 19.  3. 

§  162.  Extraneis  autem  here- 
dibus  deliberandi  potestas  data 
est  de  adeunda  hereditate  uel 
non  adeunda.  Inst.  2, 19, 5. 

&  163.  Sed  siue  is  cui  absti- 
•  j.  .  . 

nendi  potestas  est  inmiscuerit 

se  bonis  hereditariis,  siue  is  cui 
de  adeunda  (Jiereditate}  de- 
liberare  licet,  adierit,  postea 
relinquendae  hereditatis  facul- 
tatem  non  habet,  nisi  si  minor 
sit  annorum  xxv.  nam  huius 
aetatis  hominibus,  sicut  in  cete- 
ris  omnibus  causis  deceptis,  ita 
etiam  si  temere  damnosam  here- 
ditatem  susceperint.  praetor 
succurrit.  scio  quidem  diuum 
Hadrianum  etiam  maiori  xxv 
annorum  ueniam  dedisse,  cum 
post  aditam  hereditatem  grande 
aes  alienum  quod  aditae  here- 
ditatis tempore  latebat  ap- 
paruisset.  Inst.  1.  c.,  and  6. 

§  164.  Extraneis  heredibus 
solet  cretio  dari,  id  est  finis 
deliberandi,  ut  intra  certum 
temp  us  uel  adeant  hereditatem, 


instituted  heir  with  freedom  an- 
nexed, although  he  is  simply  a 
necessary  successor  and  not  also 
a  self-successor,  mancipation  being 
assimilated  to  servitude. 

§  161.  Those  who  were  not 
subject  to  the  testator's  power 
are  called  strangers,  or  external 
heirs.  Thus  children  not  in  our 
power,  if  instituted  heirs,  are 
deemed  strangers  ;  and  for  the 
same  reason  children  instituted 
by  their  mother  belong  to  this 
class,  because  women  are  not 
invested  with  power  over  their 
children.  Slaves  instituted  heirs 
with  freedom  annexed,  and  sub- 
sequently manumitted,  belong  to 
the  same  class. 


§  162.  External  heirs  have  the 
right  of  deliberating  whether  they 
will  or  will  not  enter  on  an 
inheritance. 

§  163.  But  if  either  a  person 
who  has  the  power  of  abstention 
or  a  person  who  has  the  power  of 
deliberation  as  to  his  acceptance 
of  the  inheritance,  interferes  with 
the  property  belonging  to  the  in- 
heritance, he  has  no  longer  the 
right  of  relinquishing  the  inheri- 
tance, unless  he  is  a  minor  un- 
der twenty-five  years  of  age ;  for 
minors,  both  when  they  take  any 
other  injudicious  step,  and  when 
they  incautiously  accept  a  disad- 
vantageous inheritance,  obtain  re- 
lief from  the  praetor.  The  late 
Emperor  Hadrian  even  relieved  a 
person  who  had  attained  his  ma- 
jority, when,  after  his  acceptance 
of  an  inheritance,  a  great  debt, 
unknown  at  the  time  of  accept- 
ance, had  come  to  light. 

§  164.  External  heirs  are  com- 
monly given  by  the  will  a  pre- 
scribed term  for  decision  (cretio), 
that  is,  a  definite  delay  for  deli- 
beration, within  which  time  they 


IT.  §§  152-173.]    DE  HEREDVM  QVALITATE 


211 


uel  si  non  adeant,  temporis  fine 
summoueantur.  ideo  autem 
cretio  appellata  est,  quia  cernere 
est  quasi  decernere  et  consti- 
tuere. 

§  165.  Cum  ergo  ita  scriptum 
sit  HEEES  TITIVS  ESTO,  adicere 
debemuscERNiTOQVE  IN  CENTVM 

DIEBVS  PROXIMIS  QVIBVS  SCIES 
POTERISQVE.  QVODNI  ITA  CRE- 
VERIS,  EXHERES  ESTO. 


§  166.  Et  qui  ita  heres  in- 
stitutus  est,  si  uelit  heres  esse, 
debebit  intra  diem  cretionis 
cernere,  id  est  haec  uerba  dicere 

QVOD  ME  P.  MEFIVS  TESTAMENTO 
SVO  HEREDEM  INSTITVIT,  EAM 
HEREDITATEM  ADEO  CERNOQVE. 

quodsi  ita  non  creuerit,  finite 
tempore  cretionis  excluditur ; 
nee  quicquam  proficit,  si  pro 
herede  gerat,  id  est  si  rebus 
hereditariis  tamquam  heres 
utatur.  Inst.  2, 19, 7. 

§  167.  At  is  qui  sine  cretione 
heres  insti£utus  sit,  aut  qui  ab 
intestate  legitimo  iure  ad  here- 
ditatem  uocatur,  poteti  aut  cer- 
nendo  aut  pro  herede  gerendo 
uel  etiam  nuda  uoluntate  sus- 
cipiendae  hereditatis  heres  fieri ; 
eique  liberum  est  quocumque 
tempore  uoluerit,  adire  here- 
ditatem ;  (sec?)  solet  praetor 
postulantibus  hereditariis  cre- 
ditoribus  tempus  constituere, 
intra  quod  si  ueKt  adeat  here- 
ditatem,  si  minus,  ut  liceat 
creditoribus  bona  defuncti  uen- 
dere. 

§  168.  Sicui  autem  {qui} 
cum  cretione  heres  institutus 
est,  nisi  creuerit  hereditatem, 
non  fit  heres,  ita  non  aliter  ex- 


must  formally  accept,  and  in  de- 
fault of  formal  acceptance  are 
barred.  Cretio  is  so  called  because 
the  word  cernere  is  equivalent  to 
decernere,  that  is,  to  come  to  a 
determination  and  resolution. 

§  165.  Accordingly,  after  the 
words,  '  Titius,  be  thou  my  heir,' 
we  ought  to  add,  'and  formally 
declare  thy  acceptance  within 
a  hundred  days  in  which  thou 
knowest  of  thy  institution  and 
hast  power  to  declare  whether 
thou  accept ;  or  in  default  of  so 
declaring  be  thou  disinherited.' 

§  166.  And  the  heir  thus 
appointed,  if  he  wish  to  inherit, 
must  within  the  term  prescribed 
solemnly  declare  his  decision  in 
the  following  words :  '  Whereas 
Publius  Mevius  in  his  will  has 
made  me  his  heir,  that  inheritance 
I  hereby  accept  and  adjudge  to 
myself.'  In  default  of  such 
formal  declaration,  the  elapsing 
of  the  period  allowed  shuts  him 
out  from  the  inheritance,  and  it 
is  of  no  avail  that  he  behave  as 
heir,  that  is,  deal  with  the  estate 
of  the  deceased  as  if  he  were  heir. 

§  167.  In  the  absence  of  a  pre- 
scribed term  for  deliberation  in 
the  case  of  testamentary  succes- 
sion, and  in  the  case  of  a  statutory 
right  of  succession  on  intestacy, 
a  man  takes  the  inheritance  either 
by  formal  declaration,  or  by  be- 
having as  heir,  or  by  informal 
declaration,  and  is  not  barred 
from  accepting  by  any  lapse  of 
time ;  but  it  is  usual  for  the 
praetor,  at  the  demand  of  the 
creditors  of  the  deceased,  to  ap- 
point a  period,  on  the  expiration  of 
which  without  his  acceptance  the 
creditors  are  permitted  to  put  up 
the  estate  of  the  deceased  for  sale. 

§  168.  But  just  as  a  person 
who  is  instituted  heir  subject  to 
a  prescribed  term  for  decision 
does  not  actually  become  heir 


212       SVCCESSIO  PER  VNIVERSITATEM    [n.  §§  152-173. 


cluditur,  quam  si  non  creuerit 
intra  id  tern  pus  quo  cretio  finita 
eat ;  itaque  licet  ante  diem  cre- 
tionis  constituent  hereditatem 
non  adire,  tamen  paenitentia 
actus  superante  die  cretionis 
cernendo  heres  esse  pptest. 


§  169.  At  is  qui  sine  cretione 
heres  institutus  est,  quiue  ab 
intestate  per  legein  uocatur, 
sicut  uoluntate  nuda  heres  fit, 
ita  et  contraria  destinatione 
statim  ab  hereditate  repellitur. 

§  170.  Omnis  autem  cretio 
certo  tempore  constringitur.  in 
quam  rem  tolerabile  tempus 
uisum  est  centum  dierum.  po- 
test  tamen  nihilo  minus  iure 
ciuili  au.t  longius  aut  breuius 
tempus  dari ;  longius  tarnen 
inferdum  praetor  coartat. 

§  17}..  Et  quamuis  omnis 
cretio  certis  diebus  constringa- 
tur,  tamen  alia  cretio  uulgaris 
uocatur,  alia  certorum  dierum  : 
uulgaris  ilia,  quam  supra  ex- 
posuimus,  id  est  in  qua  ad- 
icfuntur  haec  uerba  QVIBVS 
SCIET  POTERITQVE  ;  certorum 
dierum,  in  qua  detractis  his 
uerbis  cetera  scribuntur. 

§  172.  Quarum  cretionum 
magna  differentia  est.  nam 
uulgari  cretione  data  nulli  dies 
conputantur,  nisi  quibus  scierit 
quisque  se  heredem  esse  insti- 
tutum  et  possit  cernere.  cer- 
torum uero  dierum  cretione  da- 
ta etiam  nescient  i  se  heredem 
institutum  -  esse  numerantur 
dies  continui ;  item  ei  quoque 
qui  aliqua  ex  causa  cernere 
prohibetur,  et  eo  amplius  ei 


unless  he  makes  a  formal  declara- 
tion of  his  acceptance,  so  the 
only  way  he  is  excluded  from 
the  inheritance  is  by  his  not  thus 
declaring  within  the  last  day  of 
the  appointed  term ;  and  though, 
pending  the  term,  he  may  have 
made  up  his  mind  to  disclaim, 
yet  if  he  change  his  mind  before 
the  time  is  expired  and  formally 
declare  his  acceptance,  he  can 
become  heir. 

§  1 69.  If  no  term  is  prescribed 
in  the  institution,  or  in  the  case 
of  a  statutory  right  of  succession 
on  intestacy,  just  as  an  informal 
declaration  makes  him  heir,  so  the 
contrary  declaration  immediately 
bars  him  from  the  succession. 

§  170.  Every  prescribed  term 
of  deliberation  has  a  certain  limit, 
and  a  reasonable  limit  is  held  to 
be  a  hundred  days,  yet  by  the 
civil  law  a  longer  or  shorter  period 
is  allowed  to  be  fixed,  though  a 
longer  period  is  sometimes  short- 
ened by  the  praetor. 

§  171.  Although,  however,  the 
time  of  deliberation  is  always 
limited  to  .certain  days,  yet  one 
mode  of  limitation  is  called  ordi- 
nary, the  other  determinate  ;  the 
ordinary  being  that  above  in- 
dicated, namely,  with  the  addition 
of  the  words  '  in  which  he  knows 
and  is  able ' ;  determinate  that  in 
which  these  words  are  omitted. 

§  172.  These  modes  are  very 
different  in  effect,  for  when  the 
ordinary  period  is  allowed,  the 
only  days  computed  are  those  on 
which  he  knows  of  his  institution 
and  is  in  a  position  to  decide, 
but  when  a  determinate  period 
is  allowed,  notwithstanding  the 
heir's  want  of  knowledge  of  his 
institution,  the  days  begin  to  be 
counted  continuously ;  and  so  not- 
withstanding his  inability  from 
any  cause  to  declare,  or  any  con- 


ii.  §§  152-173.]    DE  HEREDVM  QVALITATE  213 

qui  sub  condi  clone  heres  iwsti-  dition  annexed  to  his  institution, 
tutus  est,  tempus  numeratur  ;  nevertheless  the  days  begin  to  be 
unde  melius  et  aptius  est  uul-  reckoned.  Accordingly, it  is  better 
gari  cretione  uti.  and  more  convenient  to  employ 

the  ordinary  mode  of  limitation. 

§  173.  Continua  haec  cretio  §  173.  The  determinate  period 
uocatur,  quia  continui  dies  is  called  continuous,  because  the 
numerantur.  sed  quia  [tamen]  days  are  reckoned  continuously, 
dura  est  haec  cretio,  altera  in  On  account  of  the  harshness  of 
usu  habetur  ;  unde  etiam  uul-  this  condition  the  other  is  com- 
garis  dicta  est.  monlv  employed,  and  hence  is 

called  ordinary. 

§  152.  The  rules  of  institution  and  disinheritance  were  formal 
restrictions  on  the  unlimited  power  of  testamentary  disposition,  which 
was  conferred  by  the  terms  of  the  Twelve  Tables  ;  §  102,  comm.  The 
general  tendency  and  purpose  of  these  restrictions  are  to  protect 
children  against  the  caprice  of  parents,  and  to  be  fully  compre- 
hended they  should  be  viewed  in  connexion  with  the  rules  respecting 
testamentum  inofficiosum,  which  were  not  simply  formal  but  real 
restrictions  of-  testamentary  freedom.  These  limitations  of  testa- 
mentary power  may  be  considered  as  consequences  of  the  Eoman 
conception  of  family  duty.  An  English  testator  has  unlimited 
power  to  dispose  of  his  property,  and  natural  feeling  is  supposed 
to  be  a  sufficient  guaranty  that  none  of  his  children  will  be  left 
without  suitable  provision.  Of  Koman  testators  Justinian  says : 
Inst.  2,  18  pr.  Plerumque  parentes  sine  causa  liberos  suos  vel 
exheredant  vel  omittunt.  The  grounds  on  account  of  which  parents 
may  disinherit  children,  and  children  parents,  are  stated  by  Justinian 
in  his  115th  Nov.,  where  the  law  on  the  subject  of  disinherison  is 
consolidated  and  amended.  They  had  to  be  mentioned  in  the  will, 
and  it  was  open  to  the  disinherited  person  to  show  that  they  were 
unfounded.  It  is  to  be  noticed  that  foreign  systems  of  law,  following 
the  Koman  example,  generally  restrict  the  father's  power  of  disin- 
herison. Cf .  Sohm,  §  1 1 3.  The  principal  impediments  to  or  restric- 
tions on  testamentary  freedom  in  the  history  of  Eoman  law  may  be 
distinguished  as  follows : — 

(1)  We  have  seen,  §  123,  that  a  suus  heres  must  either  be  instituted 
or  disinherited,  a  rule  which  the  praetor  extended  to  an  emancipated 
child,  §  135.     This  secured  him  against  being  simply  forgotten. 

(2)  If  a  child  was  disinherited  without  a  cause,  or  received  less  than 
one  fourth,  either  as  heir  or  legatee,  of  what  his  share  would  have  been 
by  intestate  descent  (portio  legitima),  he  could  by  impeaching  the  will 
as  immoral  or  unnatural  (querela  inofficiosi  testamenti)  have  it  set 
aside  on  the  fictitious  presumption  of  the  testator's  insanity.     The 
presumption,  at  least,  was  so  far  fictitious  that  it  was  not  allowed  to 


214       SVCCESSIO  PER  VNIVERSITATEM    [n.  §§  152-173. 

l)e  rebutted  by  any  other  proof  of  his  sanity  except  proof  of  the 
adequacy  of  the  motives  for  which  the  child  was  disinherited.  The 
querela  inofficiosi  was  a  form  of  petitio  hereditatis,  that  is,  a  real 
action,  and  fell  under  the  jurisdiction  of  the  centumviral  court,  4  §  31. 
Cf.  Pliny,  Ep.  5,  1 ;  6,  33.  The  amount  of  the  share  which  must  be 
left  to  a  child  to  save  a  will  from  avoidance  for  inofficiositas  bears 
some  analogy  to  a  requirement  of  the  lex  Falcidia,  for  it  is  identical 
with  the  amount  which  that  law  secures  to  the  child  or  any  one  else 
when  instituted  heir  as  against  the  claims  of  legatees.  The  querela 
inofficiosi  could  not  only  be  brought  by  a  child  but  also  by  certain 
other  near  relatives,  namely,  parents,  and  by  brothers  and  sisters, 
but  by  the  last  only  if  a  turpis  persona  was  instituted.  Children 
and  other  near  relations,  even  though  emancipated,  might  be  entitled 
to  this  remedy.  See  Inst.  2,  18  ;  Dig.  5.  2  ;  Cod.  3,  28. 

(3)  Although  a  child  (or  any  one  else)  were  instituted  heir,  yet  the 
institution  might  be  made  illusory  by  the  exhaustion  of  the  whole 
inheritance  in  legacies,  leaving  nothing  to  the  heir  but  the  burden  of 
administration.      To  meet  this,  the  lex  Falcidia  provided  that  when 
more  than  three  fourths  of  an  inheritance  is  absorbed  in  legacies,  all 
the  legacies  should  abate  proportionably  so  as  to  leave  the  heir  a  clear 
fourth  of  the  portion  in  which  he  was  instituted  (quarta  Falcidia),  §  227. 

(4)  The  senatus  consultum  Pegasianum  provided  in  the  same  way 
against  the  inheritance  being  similarly  exhausted  by  fideicommissa, 
§254. 

We  may  add  that  an  impubes  adopted  by  adrogation,  if  disinherited 
or  without  cause  emancipated,  was  entitled  to  one  fourth  of  the  inheri- 
tance of  his  adoptive  father  (quarta  Antonini),  1  §  102  ;  Inst.  1,  11,  3. 

§  154.  Primo  aut  secundo  vel  etiam  ulteriore  gradu,  for  an  account 
of  substitutio  see  §  174,  &c. 

§  155.  Velut  si  Latinus,  cf.  §  195  and  3  §  58  ;  and  for  an  explanation 
of  the  idiom  see  note  to  this  passage  in  Muirhead's  Gaius. 

§  157.  Communism  or  co-ownership  appears  to  be  an  older  insti- 
tution than  divided  or  individual  ownership.  Even  after  the  rights 
of  the  paterfamilias  had  been  enormously  developed  at  the  expense 
of  the  rest  of  the  household,  as  may  have  been  the  case  in  prehistoric 
times,  a  vestige  of  the  times  when  property  vested  rather  in  the 
family  than  in  the  chief  was  perhaps  preserved  in  the  rules  re- 
specting the  suus  heres.  Suus  heres  appears  equivalent  to  sibi  heres, 
and  implies  that  he  who  now  enters  on  proprietary  rights  in  the 
character  of  paterfamilias  had  already  possessed  proprietary  rights 
over  the  same  subject-matter  in  the  character  of  filiusfamilias. 

Less  barbarous  than  self-successor  (the  term  chosen  to  represent 
suus  heres  as  expressing  sibi  heres)  but  too  long  for  perpetual  use, 
would  have  been  the  circumlocution,  immediate  lineal  successor. 


ii.  §§152-173.]    DE  HEREDVM  QVALITATE  215 

Suus  heres  is  a  lineal  descendant  as  opposed  to  the  legitimus  heres 
or  nearest  agnate,  who  is  a  collateral  relation,  on  whom  the  inheritance 
devolves  by  the  lex  duodecim  Tabularum  in  case  there  are  no  sui : 
and  he  is  an  immediate  heir  as  opposed  to  an  eventual  heir.  For 
instance,  a  grandson  by  an  unemancipated  son  is  in  the  grandfather's 
power,  and  may  eventually  be  his  heir,  but  is  not  his  suus  heres 
during  the  life  of  the  son. 

§§  158-162.  After  acquiring  an  inheritance  the  heir  became 
personally  liable  to  the  testator's  creditors  for  the  full  amount  of  the 
testator's  debts.  But  to  relieve  sui  et  necessarii  heredes  from  being 
thus  compulsorily  burdened,  the  beneficium  abstinendi  was  given 
them,  §  158.  The  praetor  could  not,  indeed,  unmake,  any  more  than 
he  could  make,  a  heres,  but  by  his  control  over  procedure  he  could 
put  a  person  who  had  a  civil  title  in  the  same  position  as  if  he  had 
none,  while,  on  the  other  hand,  he  regarded  persons,  having  no  civil 
title  to  the  inheritance,  as  if  they  were  heredes. 

Adquisitio  hereditatis  by  an  external  or  voluntary  heres  may 
probably  have  required  at  first  in  all  cases  a  formal  act  (cretio) ;  but 
acting  the  part  of  heres  (pro  herede  gerere),  however  informally,  came 
to  be  recognized  as  equivalent  in  legal  effect  to  a  formal  declaration, 
unless  an  institution  was  expressly  made  '  cum  cretione.'  The  object 
of  instituting  an  heir  '  cum  cretione '  was  to  oblige  him  to  accept  or 
abandon  the  inheritance  within  a  prescribed  term.  For  otherwise 
the  law  allowed  him  to  postpone  his  decision  indefinitely,  §  167. 

It  was  to  get  rid  of  the  inconvenience  caused  by  leaving  the 
inheritance  open  for  a  long  period,  that  the  praetor  at  the  request  of 
creditors  of  the  estate  fixed  a  period,  generally  a  hundred  days 
(tern  pus  deliberandi),  after  which  he  authorized  the  sale  of  the  pro- 
perty, §  167.  When  it  became  customary  for  the  praetor  to  prescribe 
this  time  for  deliberation,  the  formularies  of  cretio  had  no  intelligible 
policy  and  were  regarded  as  irksome.  After  being  dispensed  with 
in  certain  cases  by  other  emperors,  they  were  totally  abrogated  by 
Arcadius  and  Theodosius,  A.D.  407.  Cod.  6,  30,  17  Cretionum 
scrupulosam  sollennitatem  hac  lege  penitus  amputari  decernimus. 
'Solemn  declaration  with  its  embarrassing  formalities  is  hereby 
decreed  to  be  absolutely  abolished.'  (For  allusions  to  cretio  by  Cicero 
see  Koby,  Roman  Law,  1,  p.  396  and  App.  Bk.  III.)  For  the 
repudiation  of  an  inheritance  by  a  voluntary  heir  no  solemn  form 
was  at  any  time  in  use,  and  perhaps  such  repudiation  was  not  legally 
recognized  in  early  law,  though  it  was  possible  for  the  heres  to  assign 
his  right  by  in  jure  cessio.  Thus  an  inheritance  could  not  be  lost 
any  more  than  it  could  be  acquired  by  a  mere  expression  of  intention, 
and  it  has  been  suggested  that  the  abeyance  of  inheritances  on  this 
account  was  a  cause  which  gave  rise  to  bonorum  possessio.  In  the 


216       SVCCESSIO  PER  VNIVERSITATEM    [n.  §§  152-173. 

time  of  Gaius,  however,  a  heres  could  on  delatio  reject  an  inheritance 
by  any  informal  act  expressive  of  his  intention,  and  the  acceptance 
or  rejection  of  an  inheritance  once  made  was  irrevocable.  §  169. 

To  afford  an  escape  from  the  danger  of  accepting  inheritances  more 
onerous  than  lucrative  Justinian  introduced  the  beneficium  Inventarii, 
or  privilege  of  making  an  inventory,  reducing  the  liability  of  an  heir 
who  made  the  required  inventory  to  the  extent  of  the  assets  that  came 
to  his  hands.  The  inventory  must  be  commenced  within  thirty  days 
from  notice  of  the  inheritance  and  completed  in  sixty  other  days.  It 
must  be  executed  in  the  presence  of  a  notary  (tabellarius)  and  the 
persons  interested  or  three  witnesses,  Inst.  2,  19,  6  ;  Cod.  6,  30,  22. 

By  English  law  the  executor  in  every  case  is  bound  to  make  an 
inventory,  and  in  no  case  is  he  answerable  to  the  testator's  creditors 
beyond  the  assets  that  come  to  his  hands,  unless  for  a  sufficient 
consideration  he  make  his  own  estate  chargeable  by  a  written 
engagement,  as  provided  by  the  Statute  of  Frauds. 

§§  164-173.  When  a  right  is  extinguished  by  inactivity  prolonged 
for  a  certain  period,  as  in  the  case  of  a  heres  after  delatio  who  has 
omitted  to  make  cretio  within  the  time  prescribed,  the  period  has  two 
modes  of  measurement :  either  every  day  is  counted,  and  then  the 
period  is  called  tempus  continuum  }  or  only  available  days,  days  on 
which  activity  is  possible,  are  counted,  and  then  the  period  is  called 
tempus  utile.  When  a  general  rule  prescribes  a  term,  not  greater 
than  a  year,  within  which  certain  steps  must  be  taken  before  a  court 
or  judicial  authority,  on  pain  of  forfeiting  certain  rights,  such  a  term 
must  be  measured  as  tempus  utile.  Such  are  the  rules  requiring 
certain  suits  to  be  instituted  within  a  year  from  their  nativity,  that 
is,  limiting  a  year  for  their  period  of  prescription  ;  and  the  rule 
requiring  the  demand  of  the  possession  of  a  heritage  (agnitio  bonorum 
possessionis),  whether  testate  or  intestate,  to  be  made,  if  the  claimant 
is  an  ascendant  or  descendant,  within  a  year  5  if  he  is  a  stranger, 
within  a  hundred  days.  The  demand  was  made  in  writing,  addressed 
to  a  competent  magistrate,  and  was  followed  by  an  immediate  grant  de 
piano  in  the  form  of  a  simple  subscriptio,  Do  bonorum  possessionem. 
Kuntze,  856.  When  the  step  required  is  rendered  impossible,  not  by 
a  permanent  obstacle,  such  as  infancy,  lunacy,  prodigality,  or  juristic 
personality,  but  by  some  transitory  circumstance,  the  days  on  which 
the  action  is  hindered  are  excluded  from  the  computation  of  the  term. 

Such  hindrance  f  i)  may  relate  to  the  person  entitled,  and  then  will 
be  his  captivity,  or  his  absence  on  public  service,  or  his  detention  by 
weather  or  illness,  coupled  with  inability  to  appoint  a  procurator : 

(2)  Or,  in  the  case  of  the  limitation  of  actions,  it  may  relate  to  the 
person  of  the  defendant :  if,  for  instance,  he  is  unknown,  or  concealed, 
or  absent  and  undefended : 


ii.  §§  152-173.]  TEMPVS  VTILE  217 

(3)  Or  it  may  consist  in  the  absence  of  the  praetor  from  the  court. 
Such  absence  might  be  accidental,  or  it  might  arise  from  the  regular 
intermission  of  the  dies  juridici,  or  days  on  which  the  praetor  per- 
formed his  judicial  functions,  §  279,  comm.  As  in  the  time  of  Marcus 
Aurelius  such  days  only  amounted  to  230  in  a  year  (Suetonius, 
Octavianus,  32),  this  cause  alone  would  make  annus  utilis  equivalent 
to  about  1^  ordinary  years.  The  intermission  of  dies  juridici  was  doubt- 
less the  principal  cause  of  a  claimant's  inability  to  perform  an  act  in 
court  on  certain  days ;  but  in  Eoman  law,  as  in  modern  times  it  was  ad- 
ministered in  Germany,;  when  much  of  the  procedure  in  an  action  had 
come  to  consist  in  delivery  of  writings  at  the  office  of  a  court,  irrespec- 
tively of  its  session  days  and  vacations,  this  cause  lost  its  importance. 

Knowledge  (scientia)  of  the  fact  that  he  is  entitled  is  not  neces- 
sarily requisite  on  the  part  of  the  person  entitled  :  in  other  words, 
his  ignorance  is  not  always  sufficient  to  exclude  a  day  from  the 
number  of  dies  utiles.  The  prescription  of  an  action,  when  it  is 
accomplished  in  annus  utilis,  begins  to  run  from  its  nativity  (actio 
nata),  irrespectively  of  the  plaintiff's  knowledge  of  his  right  to  sue. 
Ignorance  of  a  right  of  action  is  generally  the  effect  of  Negligence, 
and  therefore  undeserving  of  relief,  arid  might  be  protracted  for 
an  indefinite  period.  On  the  contrary,  ignorance  is  sometimes 
a  condition  that  delays  the  commencement  of  tempus  continuum  : 
for  instance,  the  50  dies  continui  allowed  to  a  person  for  stating 
the  grounds  on  which  hfe  was  entitled  to  be  excused  from  accepting 
a  guardianship  only  began  to  run  when  he  had  notice  of  his  nomina- 
tion, Inst.  1,  25)  16:  which  shows  that  scientia  and  ignorantia  have 
no  necessary  relation  to  the  distinction  of  dies  utiles  and  dies  continui. 

In  the  demand  (agnitio)  of  bonorum  possessio,  however,  by  the 
claimant  of  a  testate  or  intestate  succession,  the  edict  expressly  made 
the  scientia  as  well  as  the  potestas  of  the  claimant  a  condition  of  dies 
utilis,  Dig.  38^  15,  2.  Indeed  the  aditio  of  an  inheritance  was  not 
possible  unless  made  with  a  knowledge  of  the  fact  of  the  delatio 
and  of  its  nature,  whether  testacj'-  or  intestacy.  Moreover  the  igno- 
rance of  his  rights  could  not  be  ascribed  to  the  negligence  of  the 
person  entitled,  nor  was  it  likely  to  be  indefinitely  protracted,  as  it 
would  be  the  interest  of  the  person  next  entitled  to  give  him  notice 
of  the  delation.  Knowledge  will  generally  only  affect  the  beginning 
of  a  term,  and  the  person  who  is  once  made  aware  of  the  delation  of 
an  inheritance  will  usually  continue  aware  :  but  it  is  possible  that 
a  period  of  error  should  supervene ;  for  instance,  that,  after  an 
agnate  has  notice  that  he  is  entitled  by  intestacy  and  after  his  term 
for  acceptance  has  commenced  to  run,  a  forged  will  should  be  produced 
and  obtain  credit :  in  which  case  the  dies  utiles  would  not  continue  to 
run  until  the  forgery  of  the  will  was  ascertained.  Savigny,  §  189. 


218       SVCCESSIO  PER  VNIVERSITATEM    [n.§§  174-184. 


The  testamentary  clause  allowing  a  term  for  cretio  vulgaris  in 
contrast  to  cretio  continua,  like  the  edict  relating  to  bonorum 
possessio,  made  scientia  as  well  as  potestas  a  condition  of  tempus 
utile. 

As  we  have  seen  no  time  was  prescribed  by  law  for  the  aditio  of 
the  civil  inheritance,  §  167  :  for  the  acquisition  (agnitio)  of  the  prae- 
torian succession  we  have  seen  that  for  ascendants  and  descendants 
a  year,  for  others  a  hundred  days  was  prescribed,  Inst.  3,  9,  9. 
Agnitio  and  Repudiatio  could  be  made  by  a  procurator  or  agent, 
Dig.  37,  1,  3,  7  :  not  so  Aditio,  Dig.  29,  2,  90,  and  still  less  Cretio. 

§  174.  Sometimes  two  or  more 
degrees  of  heirs  are  instituted,  as 
follows  :  '  Lucius  Titius,  be  thou 
my  heir,  and  declare  solemnly 
within  a  hundred  days  after  you 
know  and  are  able  :  or,  in  default 
of  so  declaring,  be  disinherited. 
Thereupon,  be  thou,  Mevius,  my 
heir,  and  solemnly  declare  within 
a  hundred  da}7s,'  &c.  ;  and  in  this 
way  we  can  make  as  many  sub- 
stitutions as  we  like. 


§  174.     [DE 
B-vs.]    /nterdum  duos  pluresue 
gradus   heredum   facirnus,  hoc 

Hiodo  L.  TITIVS  HEEES  ESTO  CEE- 


NITOQVE   IN  DIEBVS 
PEOXIMIS  QVIBVS  SCIES  POTEEIS- 
QVE.      QVODNI      ITA      CREVEEIS, 
EXHEEES      ESTO.      TVM     MEVIVS 
HEEES      ESTO      CEENITOQVE     IN 

DIEBVS  CENTVM  et  reliqua.  et 
deinceps  in  quantum  uelimus 
substituere  possumus. 

Inst.  2,  15  pr. 

§  175.  Et  licet  nobis  uel 
unum  in  itnius  locum  substi- 
tuere pluresue,  et  contra  in 
plurium  locum  uel  unum  uel 
plures  substituere.  Inst.  2,  15,  1. 

§  176.  Primo  itaque  gradu 
scriptus  heres  hereditatem  cer- 
nendo  fit  heres  et  substitutus 
excluditur  ;  non  cernendo  sum- 
mouetur,  etiamsi  pro  herede 
gerat,  et  in  locum  eius  substi- 
tutus succedit.  et  deinceps  si 
plures  gradus  sint,  in  singulis 
simili  ratione  idem  contingit. 

§  177.  Sed  si  cretio  sine  ex- 
heredatione  sit  data,  id  est  in 
haec  uerba  si  NON  CREFJSEIS 

TVM     P.     MEVIVS     HEEES     ESTO, 

illud  diuersum  inuenitur,  quod 
si  prior  omissa  cretione  pro 
herede  gerat,  substitutum  in 
partem  admittit  et  fiunt  ambo 
aequis  partibus  heredes.  quodsi 


§  175.  We  may  substitute  in 
place  of  one  either  one  or  several, 
and,  conversely,  in  the  place  of 
several  we  may  substitute  either 
several  or  one. 

§  176.  Accordingly,  if  the  per- 
son instituted  in  the  first  degree 
accepts  the  inheritance,  he  is  heir, 
and  the  substitutes  are  excluded : 
if  he  fail  to  declare  with  due  for- 
mality, he  is  barred  in  spite  of 
acts  of  heirship,  and  his  place  is 
taken  by  the  substitute  ;  and  if 
there  are  several  degrees,  in  every 
one  a  similar  result  occurs. 

§  177.  If  the  formula  prescrib- 
ing a  term  of  deliberation  contains 
no  clauseof  disherison,  but  merely 
consists  of  these  words:  'If  thou 
fail  to  declare,  be  Publius  Mevius 
my  heir '  [cretio  imperfecta],  the 
result  is  herein  different,  that,  if 
the  person  first  instituted,  though 
he  omit  the  solemn  declaration, 


ii.  §§  174-184.]      DE  SVBSTITVTIONIBVS 


219 


neque  cernat  neque  pro  herede 
gerat,  turn  sane  in  uniuersum 
summouetur,  et  substitutus  in 
totam  hereditatem  succedit. 


6  178.     Sed  Sabino  quidem 

*  i  • 

placuit,  quamdiu  cernere  et  eo 
modo  heres  fieri  possit  prior, 
etiamsi  pro  herede  gesserit,  non 
tamen  admitti  substitutum ; 
cum  uero  cretio  finita  sit,  turn 
pro  herede  gerente  admitti  sub- 
stitutum. aliis  uero  placuit 
etiam  superante  cretione  posse 
eum  pro  herede  gerendo  in 
partem  substitutum  admittere 
et  amplius  ad  cretionem  reuerti 
non  posse. 


§  179.  Liberis  nostris  inpu- 
beribus  quos  in  potestate  habe- 
mus  non  solum  ita  ut  supra 
diximus  substituere  possumus, 
id  est  ut  si  heredes  non  ex- 
titerint,  alius  nobis  heres  sit ; 
sed  eo  amplius  ut,  etiamsi 
heredes  nobis  extiterint  et  ad- 
huc  inpuberes  mortui  fuerint, 
sit  iis  aliquis  heres  ;  uelut  hoc 

modo  TITIVS  FILIVS  MEVS  MIHI 

HERBS  ESTO.  81  FILIVS  MEVS 
MIHI  (HERES  NON  ERIT  SIVE 
HERES)  EEIT  ET  PRIVS  MORIATVR 
QVA.M  IN  SVAM  TVTELAM  VENE- 
RIT,  TVNC  SE1VS  HERES  ESTO. 

Inst.  2,  16  pr. 

§  180.  Quo  casu  siquidem 
non  extiterit  heres  filius,  sub- 
stitutus patri  fit  heres  ;  si  uero 
heres  extiterit  filius  et  ante 
pubertatem  decesserit,  ipsi  filio 
fit  heres  substitutus.  quam 
ob  rem  duo  quodammodo  sunt 


act  as  heir,  the  substitute  is  only 
admitted  to  a  portion,  and  both 
take  a  moiety  :  if  he  neither  for- 
mally declare  nor  act  as  heir,  he 
is  entirely  excluded,  and  the  sub- 
stitute succeeds  to  the  whole  in- 
heritance. 

§  178.  It  was  the  opinion  of 
Sabinus  that,  as  long  as  a  term 
for  formally  declaring  and  thereby 
becoming  heir  subsists,  a  person 
in  a  higher  grade  does  not  let  in 
the  substitute,  even  if  he  inform- 
ally act  as  heir,  and  that  only  after 
the  expiration  of  the  term  is  the 
substitute  admitted  instead  of  the 
person  instituted,  who  has  been 
acting  as  heir.  But  the  other 
school  held  that,  even  pending  the 
allotted  term,  informal  acts  of 
heirship  let  in  the  substitute  and 
bar  the  prior  heir  from  reverting 
to  his  right  of  formal  declara- 
tion. 

§  179.  To  children  below  the 
age  of  puberty  in  the  power  of 
the  testator,  not  only  can  such  a 
substitute  as  we  have  described 
be  appointed,  that  is,  one  who 
shall  take  the  inheritance  on  their 
failure  to  inherit,  but  also  one 
who,  if  after  inheriting  they  die 
before  attaining  the  age  of  puberty, 
shall  be  their  heir  ;  which  may 
be  done  in  the  following  terms : 
'  Be  my  son  Titius  my  heir,  and 
if  my  son  does  not  become  my 
heir,  or  after  becoming  my  heir 
die  before  becoming  his  own 
guardian,  [that  is  before  attaining 
the  age  of  puberty],  then  be  Seius 
the  heir.' 

§  1 80.  In  which  case,  if  the  son 
fail  to  inherit,  the  substitute  is 
the  heir  of  the  testator,  but  if  the 
son  die  after  inheriting  and  with- 
out attaining  the  age  of  puberty, 
the  substitute  is  heir  to  the  son. 
Thus  there  are  two  wills,  so  to 


220        SVCCESSIO  PER  VNIVERSITATEM    [n.  §§  174-184. 


testamenta,  aliud  patris,  aliud 
tilii,  tamquam  si  ipse  filius  sibi 
heredem  instituisset ;  aut  certe 
unum  est  testamentum  duarum 
hereditatum.  Inst.  1.  c. 

§  181.  Ceterum  ne  post  obi- 
tumparentispericuloinsidiarum 
subiectus  uideatur  pupillus,  in 
usu  est  uulgarem  quidem  sub- 
stitutionem  palam  facere,  id  est 
eo  loco  quo  pupillum  heredem 
instituimus ;  (nam)  uulgaris 
substitutio  ita  uocat  ad  heredi* 
tatem  Bubstitutum,  si  onlnino 
pupillus  heres  non  extiterit ; 
quod  accidit  cum  uiuo  parente 
moritur,  quo  casu  nullum  sub- 
stituti  maleficium  suspicari  pos- 
sumus,  cum  scilicet  uiuo  testa- 
tore  omnia  quae  in  testamento 
scripta  sint  ignorentur.  illam 
autemsubstitutionem  per  quam, 
etiamsi  heres  extiterit  pupillus 
et  intra  pubertatem  decesserit, 
substitutum  uocamus.'separatim 
in  inferioribus  tabiilis  scribi- 
mus,  easque  tabulas  proprio 
lino  propriaque  cera  consigna- 
mus,  et  in  prioribus  tabulis 
cauemus,  ne  inferiores  tabulae 
uiuo  filio  et  adhuc  inpubere 
aperiantur.  sed  longe  £utius 
est  utrumque  genus  substitu- 
tionis  [separatim]  in  inferioribus 
tabulis  consignari,  quod  si  ita 
[consignatae  uel]  separatae 
fuerint  substitutiones,  ut  dixi- 
mus,  ex  priore  potest  intellegi 
in  altera  [alter]  quoque  idem 
esse  substitutus.  Inst.  2, 16, 3. 

§  182.  Non  solum  autem 
heredibus  institutis  inpuberibus 
liberis  ita  substituere  possumus, 
ut  si  ante  pubertatem  mortui 
fuerint,  sit  is  heres  quern  nos 
uoluerimus,  sed  etiam  exhere- 
datis.  itaque  eo  casu  si  quid 
pupillo  ex  hereditatibus  lega- 


speak,  the  father's  and  the  son's, 
just  as  if  the  son  himself  had 
instituted  an  heir ;  or  at  any  rate 
there  is  one  will  dealing  with 
two  inheritances. 

§  181.  However,  to  save  the 
ward  from  the  danger  of  foul  play 
after  the  death  of  the  parent,  it 
is  common  for  the  ordinary  sub- 
stitution to  be  made  openly,  that 
is,  in  the  clause  wherein  the  ward 
is  instituted,  for  as  the  ordinary 
substitution  only  calls  a  man  to 
the  succession  in  case  of  the  ward 
altogether  failing  to  inherit,  and 
this  can  only  occur  by  his  death 
in  the  lifetime  of  his  parent,  the 
substitute  in  this  case  is  open  to 
no  suspicion  of  crime,  because 
while  the  testator  is  alive  the 
contents  of  the  will  are  a  secret. 
But  the  substitution,  wherein  a 
man  is  named  heir  after  the  suc- 
cession and  death  of  the  ward 
before  reaching  the  age  of  puberty, 
is  written  separately  on  later 
tablets,  tied  with  their  own  cords 
and  sealed  with  their  own  wax, 
and  it  is  prohibited  in  the  prior 
tablets  that  the  will  should  be 
opened  in  the  lifetime  of  the 
son  before  he  attains  the  age  of 
puberty.  Indeed  it  is  far  safer 
that  both  kinds  of  substitution 
should  be  sealed  up  separately  in 
two  subsequent  tablets,  for  if  the 
ordinary  substitution  is  contained 
in  the  first  tablets  it  is  easy  to 
conjecture  that  the  same  substi- 
tute is  appointed  in  the  second. 


§  182.  Not  only  when  we  ap- 
point children  under  the  age  of 
puberty  our  heirs  can  we  make 
such  a  substitution  that  if  they 
die  before  puberty  the  substitute 
is  their  heir,  but  we  can  do  it 
even  when  we  disinherit  them, 
so  that  in  case  the  ward  should 


ii.  §§  174-184.]  DE  PVPILLARI  SVBSTITVTIONE  221 

tisue  aut  donationibus  propin-  acquire  anything  either  by  heir- 
quorum   adquisitum   fuerit,  id  ship,  legacies,  or  by  gifts  of  his 
omne  ad  substitutum  pertinet.  relatives,  all  will  belong  to  the 
Inst.  2,  16,  4.  substitute. 

§  183.  Quaecumque  diximus  §  183.  What  has  been  said  of 

de     substitutione      inpuberum  substitution  to  children  below  the 

liberorum  uel  heredum  institu-  age  of  puberty,  whether  appointed 

torumuelexheredatorum,  eadem  heirs  or  disinherited,  is  true  of 

etiam  de  postumis  intellegemus.  substitution  to  afterborn  children. 
Inst.  1.  c. 

§  184.  Extraneo  oiero  heredi  §  184.  To  a  stranger  instituted 

institute    ita    substituere   non  heir  we  cannot  appoint  a  sub- 

possumus,  ut  si  heres  exfciterit  stitute  who,  if  the   stranger  in- 

et  intra  aliquod  tempus  deces-  herit   and  die   within  a  certain 

sent,  alius  ei  heres  sit ;  sed  hoc  time,  is  .to  be  his  heir  ;  but  we 

solum  nobis  permissum  est,  ut  have   onlY  power  to  bind  him 

eum  per  fideicommissum  obli-  bY  a  trust  to  convey  the  inheri- 

gemus,  ut  hereditatem  nostram  ^ance  to  another,  in  part  or  in 

totam  uel  (pro)  parte  restituat ;  wh°le>   a,  ^ght  which  shall  be 

quod   ius   quale    sit,  sub '  loco  S§^?1    m           ^^  P 
trademus.               Inst.  2,  16,  9. 

§  177.  It  will  be  observed  that  this  rule  deviates  from  the  principle 
laid  down  in  §  166.  A  constitution  of  Marcus  Aurelius  changing 
the  law  further  in  the  same  direction,  and  mentioned  by  TJlpian 
(Sed  postea  divus  Marcus  constituit,  ut  et  pro  herede  gerendo  ex 
asse  fiat  heres,  22,  34.  'Subsequently  Marcus  Aurelius  enacted  that 
acts  of  heirship  would  make  him  [the  person  instituted,  in  the  case 
of  cretio  imperfecta]  exclusive  heir '),  was  clearly  not  enacted  when 
this  paragraph  wa.s  written  by  Gaius,  and  furnishes  an  indication 
of  the  date  at  which  this  book  of  his  Institutions  was  published. 
Marcus  Aurelius  was  sole  emperor  A.  D.  169-176. 

§  179.  Cicero  frequently  mentions  a  great  case  in  which  the 
question  arose  whether  a  vulgaris  substitutio  may  be  implied  from 
a  pupillaris  substitutio.  The  centumviral  court  decided  that  the 
intention  rather  than  the  words  of  the  testator  should  prevail,  and 
that  the  heir  appointed  to  succeed  the  son  in  case  the  son  died 
before  puberty  should  be  deemed  appointed  to  succeed  the  testator 
in  case  no  son  was  born :  Malim  mini  L.  Crassi  unam  pro  M'.  Curio 
dictionem  quam  castellanos  triumphos  duos,  Brutus  73,  'I  would 
rather  have  made  the  single  speech  of  Lucius  Crassus  for  Manius 
Curius  than  have  had  two  triumphs  for  the  capture  of  fortresses.' 
The  other  passages  are  worth  referring  to  De  Orat.  1,  39,  57  ;  2,  6,  32  ; 
Brutus,  39,  52;  Pro  Caecina,  18,  53;  Topica,  10,  44.  Marcus 
Aurelius  enacted  that  in  every  case  pupillaris  substitutio  should  be 
implied  in  vulgaris  substitute  and  vice  versa,  unless  the  contrary 
intention  was  expressed,  Dig.  28,  6,  4. 


222       SVCCESSIO  PER  VNIVERSITATEM    [n.  §§  185-190. 


§  184.  That  is  to  say,  we  cannot  by  the  ordinary  rules  of  law  limit 
an  inheritance  so  as  to  make  it  subject  to  a  resolutive  condition  or 
determinable  at  a  future  time.  All  we  can  do  is  to  direct  the  heir 
by  way  of  trust  (fidei  commissum)  to  reconvey  the  inheritance  to 
some  one  at  a  future  time  or  on  the  happening  of  some  future  event. 
Hereditas  itself,  strictly  speaking,  is  indelible  (semel  heres  semper 
heres).  Regula  est  juris  civilis  qua  constitutum  est  hereditatem 
adimi  non  posse,  Dig.  28,  2,  13,  1.  Of.  §§  246-257,  comm. 

DE   HEREDIBVS    INSTITVENDIS. 


§  185.  Sicut  autem  liberi 
homines,  ita  et  serui,  tarn  nostri 
quam  alieni,  heredes  scribi  pos- 
sunt. 

§  186.  Sed  noster  seruus 
simul  et  liber  et  heres  esse 
iuberi  debet,  id  est  hoc  modo 

STICHVS  SEKVVS  MEVS  LIBER 
HERESQVE  ESTO,  uel  HERES 
LIBERQVE  ESTO. 

§  187.  Nam  si  sine  libertate 
heres  institutue  sit,  etiamsi 
postea  manumissus  fuerit  a 
domino,  heres  esse  non  potest, 
quia  institutio  in  persona  eius 
non  const^it ;  ideoque  licet 
alienatus  sit,  non  potest  iussu 
domini  noui  cernere  heredi- 
tatem. 

§  188.  Cum  libertate  uero 
heres  institutus  siquidem  in 
eaofem  causa  durauerit,  fit  ex 
testamento  li&er  et  inde  neces- 
sarius  heres.  si  uero  ab  ipso 
testatore  manumissus  fuerit,  suo 
arbitrio  hereditatem  adire  po- 
test. quodsi  alienatus  sit,  iussu 
noui  doming  adire  hereditatem 
debet,  qua  ratione  per  eum 
dominus  fit  heres ;  nam  ipse 
neque  heres  neque  liber  esse 
potest.  Inst.  2,  14, 1. 

§  189.  Alienus  quoque  seruus 
heres  institutus  si  in  eadem 
causa  durauerit,  iussu  domini 
hereditatem  adire  debet;  si  uero 
alienatus  ab  eo  fuerit  aut  uiuo 
testatore  aut  post  mortem  eius, 


§  185.  Not  only  freemen  but 
slaves,  whether  belonging  to  the 
testator  or  to  another  person,  may 
be  instituted  heirs. 

§  186.  A  slave  belonging  to  the 
testator  must  be  simultaneously 
instituted  and  enfranchised  in  the 
following  manner:  'Stichus,  my 
slave,  be  free  and  be  my  heir  ;*  or, 
'  Be  my  heir  and  be  free.' 

§  1 87.  If  he  is  not  enfranchised 
at  the  same  time  that  he  is  insti- 
tuted, no  subsequent  manumis- 
sion by  his  owner  enables  him  to 
take  the  succession,  because  the 
institution  is  originally  void,  and 
even  if  aliened  he  cannot  formally 
declare  his  acceptance  by  the  order 
of  the  new  master. 

§  188.  When  a  slave  is  simul- 
taneously instituted  and  enfran- 
chised, if  he  continue  in  the  same 
condition,  the  will  converts  him 
into  a  freeman  and  a  necessary 
heir :  if  the  testator  himself  manu- 
mits him  in  his  lifetime,  he  is  able 
to  use  his  own  discretion  about 
acceptance :  if  he  is  aliened  he 
must  have  the  order  of  his  new 
master  to  accept,  and  then  his 
master  through  him  becomes 
heir,  the  alienated  slave  himself 
becoming  neither  heir  nor  free. 

§  189.  When  another  person's 
slave  is  instituted  heir,  if  he  con- 
tinue in  the  same  position,  he 
must  have  the  order  of  his  master 
to  accept  the  succession;  if  aliened 
by  him  in  the  lifetime  of  the  tes^ 


ii.  §§185-190.]  DE  HEREDIBVS  INSTITVENDIS  223 

antequam    cernat,  debet   iussu  tator,  or  after  his  death   before 

noui  domini   cernere  ;    si  uero  formal  acceptance,  he  must  have 

manumissus    est,    suo    arbitrio  the  order  of  the  new  master  to  be 

adire  hereditatem  potestf.  able  to  accept :  if  manumitted  be- 

Inst.  1.  C.  ^ ore  acceptance,  he  is  able  to  follow 

his  own  judgement  as  to  accepting. 

§  190.  Siautemseruusaliemis  §  190.  When  a  slave  of  another 

heres  institutus  est  uulgari  ere-  person  is  instituted  heir  with  the 

tione  data,  ita  intellegitui  dies  ordinary  term  of  cretio,  the  term 

cretionis  cedere,  si  ipse  seruus  only  begins  to  run  from  the  time 

scierit  se   heredem   institfutum  when  the  slave  has  notice  of  his 

esse,  nee  ullum  inpedimentum  appointment,  and  is  not  prevented 

sit,  quominus  certiorem  domi-  in  any  waY  from  informing  the 

num    faceret,   ut    illius    iussu  master  SP   *hat  *e  mav  at  his 

cernere  possit.  order  make  formal  accePtan<*. 

§  187.  This  rule  was  abolished  by  Justinian,  who  enacted  that 
the  enfranchisement  of  the  testator's  slave,  though  unexpressed, 
should  always  be  implied  in  his  institution  as  heir.  Cod.  6,  27,  5  ; 
Inst.  1,  6,  2. 

§  188.  Justinian  explains  why  the  slave  lost  his  liberty  :  De- 
stitisse  enim  a  libertatis  datione  videtur  dominus  qui  eum  alienavit, 
Inst.  2,  14,  1.  'A  revocation  of  the  bequest  of  liberty  is  inferred 
from  the  fact  of  his  alienation.'  If  we  ask  why  the  implied  inten- 
tion that  suffices  to  revoke  the  enfranchisement  does  not  suffice  to 
revoke  the  institution,  the  answer  is,  that  a  bequest  can  be  revoked 
by  any  act  clearly  implying  an  intention  to  revoke,  whereas  an  insti- 
tution requires  a  more  solemn  revocation,  by  execution  of  a  later 
will,  or  some  other  means,  §§  147—151,  comm. 

§  189.  What  was  the  motive  of  instituting  as  heir  the  slave  of 
another  person  ?  Such  a  disposition  could  not  be  dictated  by  kindness 
to  the  slave,  for  he  would  probably  gain  nothing  by  his  institution  ; 
but  was  a  device  adopted  for  two  purposes,  (i)  for  facilitating  the 
conversion  of  a  succession  into  money,  and  (2)  for  securing  an  institu- 
tion against  failure. 

(i)  By  such  a  disposition  the  testator  gave  the  proprietor  of  the 
slave,  whose  benefit  was  intended,  the  option  of  either  becoming 
actual  heir,  or  of  doing,  what  he  could  not  otherwise  readily  do,  i.  e. 
of  receiving  the  net  value,  or  a  large  portion  of  the  net  value,  of 
the  succession,  without  incurring  the  expense  of  the  annexed  sacred 
rites  (sacra)  and  the  burden  of  administration,  by  practically  selling 
the  succession  for  the  highest  price  he  could  get  to  any  one  who  was 
willing  to  incur  these  expenses  and  troubles  as  a  matter  of  specula- 
tion. To  effect  this,  he  had  only  to  sell  the  slave  at  a  price  enhanced 
by  his  character  of  institutus.  The  slave  thereupon,  making  aditio 
of  the  inheritance  in  obedience  to  an  order  of  the  purchaser,  vested 


224       SVCCESSIO  PER  VNIVERSITATEM    [n.  §§  185-190. 

the  inheritance  in  the  purchaser.  If  the  former  proprietor  was 
reluctant  to  part  with  his  slave,  he  had  only  to  bargain  for  his 
reconveyance  by  a  fiducia  or  condition  annexed  to  the  sale  or  manci- 
patio.  Reddendus  (or  in  the  time  of  Gaius  it  might  have  been  a  case 
of  mancipatio  cum  fiducia)  §st  servus  ea  conditione  ut,  cum  jussu 
ejus  adierit,  rursum  retradatur.  By  this  branch  of  speculation  the 
instituted  slave  might  pass  through  many  hands  before  the  succession 
vested,  Dig.  37,  11,  2,  9. 

(2)  A  second  object  gained  by  the  institution  of  another  person's 
slave  was  the  transmission  of  an  inheritance  to  the  heirs  of  such 
person,  If  the  heir  instituted  died  in  the  lifetime  of  the  testator, 
the  institution  failed,  and  the  failure  could  not  be  prevented  by  the 
substitution  (secondary  institution)  of  the  heir  of  the  person  instituted, 
for  such  heir  would  be  a  persona  incerta,  §  242.  The  difficulty  was 
met  by  instituting  a  slave,  who  on  the  death  of  his  master,  the 
virtual  heir,  would  become  the  slave  of  the  master's  heir,  and  acquire 
for  him  the  succession  of  the  testator.  TQ  guard  against  the  con- 
tingency of  the  death  of  the  slave  in  the  lifetime  of  the  testator, 
several  slaves  might  be  instituted  by  way  of  substitution.  Ihering, 
§  56.  An  inheritance  delated  to  a  slave  is  said  to  be  ambulatory : 
Ambulat  cum  dominio  bonorum  possessio,  1.  c.  (In  a  similar  way 
we  might  say  :  ambulat  cum  ca/pite  noxa,  4  §  77.) 

§  190,  Si  ipse  servus  scierit  se  heredem  institutum.  The  know- 
ledge of  the  slave  was  material  ;for  the  purpose  of  acquisition,  since 
the  slave  is  regarded  as  if  he  were  heir,  though  acquiring  not  for 
himself  but  for  his  master.  Cf,  Inst.  3,  17,  1  and  2. 

A  slave  instituted  heir  might  be  the  property  of  several  masters, 
who  when  he  entered  upon  the  inheritance  would  become  co-heredes 
of  it  according  to  their  respective  shares  in  him.  Inst.  2,  14,  3.  In 
the  same  title  of  the  Institutes,  Justinian  mentions  that  an  heir 
might  either  be  appointed  to  take  the  whole  of  an  inheritance  or  to 
share  it  with  other  co-heirs  in  any  proportions.  We  may  briefly 
state  the  technical  terms  and  rules  of  interpretation  by  which 
different  shares  were  allotted.  An  inheritance  was  commonly  re- 
garded as  a  pound  (as)  consisting  of  twelve  ounces  (unciae).  The 
different  fractions  were  thus  denominated :  uncia,  a  twelfth  of  an  as, 
or  an  ounce  ;  sextans,  a  sixth  of  an  as,  or  two  ounces  ;  quadrans, 
a  fourth  of  an  as,  or  three  ounces ;  triens,  a  third  of  an  as,  or  four 
ounces ;  quincunx,  five  ounces ;  semis,  half  an  as,  or  six  ounces ; 
septunx,  seven  ounces ;  bes  (bis  triens),  two  thirds  of  an  as,  or  eight 
ounces  ;  dodrans  (deme  quadrantem),  an  as  minus  a  fourth,  or  nine 
ounces ;  dextans  (deme  sextantem),  an  as  minus  a  sixth,  or  ten 
ounces ;  deunx  (deme  unciam),  an  as  minus  an  ounce,  or  eleven 
ounces ;  as,  twelve  ounces. 


II.  §§  185-190.]  DE  HEREDIBVS  INSTITVENDIS  225 

An  heir  instituted  in  twelve  ounces  (ex  asse)  took  the  whole :  but 
it  was  a  rule  that  no  one  could  be  partly  testate  and  partly  intestate, 
and  therefore  if  an  heir  were  instituted  in  a  part  (ex  parte)  and 
no  other  co-heir  instituted,  that  part  represented  a  pound,  and  the 
heir  took  the  whole.  So  if  the  shares  allotted  to  several  co-heirs 
amounted  to  more  than  twelve  ounces,  then,  if  no  other  heir  was 
appointed  with  an  unexpressed  share,  the  as  was  deemed  to  consist 
of  more  than  twelve  ounces,  and  each  co-heir  took  a  ratable  part  of 
the  inheritance.  If  one  heir  were  instituted  in  a  part,  say  ex  besse, 
and  a  co-heir  were  instituted  for  whom  no  part  was  expressed,  then 
the  co-heir  would  take  the  residue  of  the  as,  that  is,  would  be  deemed 
to  be  instituted  ex  triente.  But  if  the  parts  expressed  for  certain 
heirs  exhausted  or  exceeded  the  as  and  another  heir  or  heirs  were 
named  without  express  shares,  then  the  whole  inheritance  was  sup- 
posed to  consist  of  two  asses  (dupondius)  and  the  expressed  shares 
were  reduced  to  so  many  ounces  out  of  twenty-four,  the  heir  or  heirs 
with  unexpressed  parts  taking  the  residue.  Similarly,  if  necessary, 
the  inheritance  was  supposed  to  consist  of  thirty-six  ounces. 

If  the  institution  of  one  co-heir  lapsed,  the  shares  of  the  remaining 
co-heirs  were  ratably  augmented  (accretio),  just  as,  if  originally  less 
than  twelve  ounces  had  been  distributed,  the  expressed  shares  of 
each  would  be  ratably  augmented  so  as  to  exhaust  the  inheritance. 

This  rule,  however,  was  modified  by  the  leges  caducariae,  passed 
chiefly  to  discourage  celibacy,  namely  the  lex  Julia  de  maritandis 
ordinibus,  A.  D.  4,  and  the  lex  Papia  Poppaea,  on  marriage  and  suc- 
cession, A.  D.  9,  in  which  the  provisions  of  the  lex  Julia  were  in- 
corporated, for  which  reason  both  laws  are  sometimes  referred  to  as 
lex  Julia  et  Papia. 

Caducum  is  a  devise  or  bequest,  valid  at  Civil  law,  but  vacated  by 
some  particular  law  or  statute,  such  as  a  legacy  to  a  celibate  or  Latinus 
Junianus,  in  case  the  former  fails  within  a  hundred  days  to  comply 
with  the  law  [the  Lex  Papia],  or  the  latter  to  acquire  full  citizen- 
ship ;  or  in  case  of  the  institution  of  a  co-heir,  or  bequest  to  a  legatee 
who  dies  or  becomes  an  alien  before  the  will  is  opened,  Ulpian,  17,  1. 
[By  the  Civil  law,  unconditional  devises  and  bequests  vested  (dies 
cedit)  at  the  death  of  the  testator  (though  still  defeasible  by  the  failure 
of  the  will) ;  by  the  lex  Papia  Poppaea  not  before  the  opening  of  the 
will,  thus  making  the  chance  of  a  lapse  greater,  but  Justinian  re-estab- 
lished the  rule  of  Civil  law.]  Cf.  Roby,  Eoman  Law,  Bk.  Ill,  ch.  x,  B. 

The  leges  caducariae,  which  fixed  the  conditions  of  caducity,  were 
aimed  against  the  coelebs  and  the  orbus.  Cf.  §§  1 1 1, 144, 286.  Coelebs 
is  defined  to  be  an  unmarried  man  between  the  age  of  twenty  and  sixty, 
or  an  unmarried  woman  between  the  age  of  twenty  and  fifty.  Orbus 
is  a  man  between  fifty  and  sixty  without  children,  natural  or  adoptive. 


226  DE  LEGATIS  [n.  §§  191-223. 

An  unmarried  person  could  take  nothing  as  heres  extraneus 
or  legatee ;  an  orbus  could  only  take  half  of  the  devise  or  bequest 
intended  for  him.  The  inheritance  or  legacy  thus  lapsed  was 
allotted  by  the  leges  caducariae  in  the  first  place,  in  the  case 
of  a  legacy,  to  conjoint  legatees  of  the  same  specific  thing  if  the 
legatees  had  children  ;  in  the  second  place  to  children  or  parents  of 
the  deceased  who  were  instituted  heirs  in  his  will ;  in  the  third  place 
to  heirs  and  other  legatees  having  children ;  and  in  last  remainder  to 
the  treasury  (aerarium),  §  206.  Caracalla,  A.  D.  212-217,  made  them 
lapse  immediately  to  the  fiscus  ;  Hodie  ex  constitutione  imperatoris 
Antonini  omnia  caduca  fisco  vindicantur,  sed  servato  jure  antique 
liberis  et  parentibus,  Ulpian,  17,  2.  But  from  the  rules  of  caducity 
ascendants  and  descendants  of  the  testator  to  the  third  degree  were 
excepted  both  by  the  lex  Papia  and  by  the  constitution  of  Caracalla. 
Constantine,  A.  D.  320,  abolished  the  pains  and  penalties  of  celibacy 
and  childlessness,  Cod>  8,  57,  and  Justinian  formally  and  finally 
abrogated  the  leges  caducariae. 

By  substitutions,  or  alternative  institutions,  testators  were  able  to 
modify  the  course  of  accrual  by  Civil  law  (jus  accrescendi),  and,  what 
perhaps  was  still  more  interesting,  to  escape  from  the  operation 
of  the  laws  of  caducity,  by  which  sometimes  a  whole  inheritance 
might  fall  into  the  clutches  of  the  treasury. 

§191.  Post  haec  uideamus  de  §191.  Let    us    now    examine 

legatis.     quae  pars  iuris  extra  legacies,   a  kind   of  title  which 

propositam    quidem    materiam  seems  foreign  to  the  matter  in 

uidetur;  nam  loquimur  de  his  hand,  for  we  are  expounding  titles 

iuris  figuris  quibus  per  uniuer-  whereby  aggregates  of  rights  are 

sitatem  res  nobis  adquiruntur  ;  acquired  ;  but  we  had  at  any  rate 

sed  cum  omni  modo  de  testa-  to  treat   of  wills  and  heirs  ap- 

mentis    deque    heredibus    qui  Pomted  by  will,  and  it  is  natural 

*•     i-i                 i        i-  in  close  connexion  therewith  to 

testamento  mstituuntur  locuti  congider  ^         ieg  Q£  m&  [for 

sumus,  non  sine  causa  sequenti     a  l  ^  &n  £cce          of  a  wjm 

loco  potent  naec  iuris  materia 
tractari.  Inst.  2,  20,  pr. 

[DE  LEGATIS.] 

§    192.     Legatorum     itaque  §  192.    Legacies    are    of    four 

genera  sunt  quattuor :  aut  enim  kinds  ;  by  vindication,   by   con- 

per  uindicationem  legamus  aut  demnation,    by    permission,    by 

per  damnationeni  aut  sinendi  p  reception* 
modo  aut  per  praeceptionem. 

§193.  Per  uindicationem  hoc  §  193>  A  legacy  by  vindication 

modo  legamus  TITIO  uerbi  gratia  is   m   the  following   form:  'To 

HOMINEM  STICHVM  DO  LEGO;  sed  Lucius  Titius  I  give  and  bequeath, 

si  alteruirura  uerbum  posi-  say,  my  slave  Stichus,'  or  only 


ii.  §§  191-223.]        LEGATORVM  GENERA 


227 


turn  sit,  ueluti  DO  aut  LEGO, 
aeque  per  uiTidicationem  lega- 
tum  est ;  item,  ut  magis  uisum, 
est,  si  ita  legatum  fuerit  SVMITO, 
uel  ita  SIBI  HABETO,  uel  ita  CA- 
PITO,  aeque  per  uindicationem 
legatum  est. 

§  194.  Ideo  awtem  per  uindi- 
cationem legatum  appellatur, 
quia  post  aditam  hereditatem 
statim  ex  iure  Quiritium  res 
legatarii  fit ;  et  si  earn  rem 
legatarius  uel  ab  herede  uel  ab 
alio  quocumque  qui  earn  pos- 
sidet  petat,  uindicare  debet,  id 
est  intendere  suam  rem  ex  iure 
Quiritium  esse. 

§  195.  In  eo  solo  dissentiunt 
prudentes,quodSabinus  quidem 
et  Cassius  ceterique  nostri  prae- 
ceptores  quod  ita  legatum  sit 
statim  post  aditam  hereditatem 
putant  fieri  legatarii,  etiamsi 
ignoret  sibi  legatum  j  esse  [di- 
missum],  serf  posteaquam  scierit 
et  -  -  legajtum,  proinde 

esse  atque  si  legatum  non  esset ; 
Nerua  uero  et  Proculus  ceteri- 
qne  illius  scAolae  auctores  non 
aliter  putant  rem  legatarii  fieri, 
quam  si  uoluerit  earn  ad  se 
pertinere.  sed  hodie  ex  diui 
Pii  Antonini  constitutione  hoc 
magis  iure  uti  iddemur  quod 
Proculo  placuit ;  nam  cum  le- 
gatus  fuisset  Latinus  per  uin- 
dicationem coloniae,  Deliberent, 
inquit,  decuriones  an  ad  se 
uelint  pertinere,  proinde  ac  si 
uni  legatus  esset. 


§  196.  -£"ae  autem  solae  res  per 
uindicationem  legantur  recte 
quae  ex  iure  Quiritium  ipsius 
testatoris  sunt.  sed  eas  quidem 
res  quae  pondere  numero  men- 


one  word  need  be  used  as,  'I  give 
or  I  bequeath  ; '  and  other  terms 
such  as  :  '  Let  him  take,' '  Let  him 
have,'  '  Let  him  seize,'  equally 
confer  a  legacy  by  vindication  ac- 
cording to  the  prevailing  opinion. 

§  194.  It  is  so  called,  because 
immediately  on  the  acceptance  of 
the  inheritance  the  thing  becomes 
the  Quiritarian  property  of  the 
legatee,  and  if  he  claims  it  from 
the  heir  or  any  other  possessor, 
he  ought  to  vindicate  it,  that  is, 
claim  by  action  that  he  is  owner 
thereof  by  law  of  the  Quirites. 

§  1 9  5.  So  far  the  two  schools  are 
agreed,  the  only  point  in  dispute 
between  them  is  this,  that  accord- 
ing to  Sabinus  and  Cassius  and  the 
other  authorities  of  my  school, 
what  is  thus  left  becomes  the  pro- 
perty of  the  legatee  immediately 
on  the  acceptance  of  the  inherit- 
ance, even  before  he  has  notice  of 
the  leeacy,  and  on  notice  and  re- 
pudiation by  the  legatee,  the  legacy 
is  cancelled.  While  Nerva  and 
Proculus  and  the  jurists  of  that 
school  make  the  passing  of  the 
property  to  the  legatee  depend  on 
his  accepting  the  legacy ;  and  now 
a  constitution  of  the  late  emperor 
Pius  Antoninus  seems  to  have  es- 
tablished the  doctrine  of  Proculus 
as  the  rule,  for  in  the  case  of  a  Lati- 
nus Junianus  bequeathed  by  vindi- 
cation to  a  colony,  the  Emperor 
said,  'The  decurions  must  deli- 
berate whether  they  wish  to  be- 
come owners  as  they  would  have 
to  do  if  the  bequest  was  to  an  in- 
dividual.' 

§  196.  Only  those  things  are 
properly  bequeathed  by  vindica- 
tion which  are  the  Quiritarian 
property  of  the  testator  ;  things, 
however,  estimated  by  weight, 


228 


DE  LEGATIS 


[11.  §§  191-223. 


sura  constant  placuit  sufficere 
si  mortis  tempore  sint  ex  iure 
Quiritium  testatoris,  ueluti  ui- 
num  oleum  frumentum  pecu- 
niam  numeratam.  ceteras  res 
uero  placuit  utroque  tempore 
testatoris  ex  iure  Quiritium 
esse  debere,  id  est  et  quo  facere£ 
testamentum  et  quo  moreretur ; 
alioquin  inutile  est  legaturn. 

§  197.  Sed  sane  hoc  ita  est 
iure  ciuili.  postea  ueroauctore 
Nerone  Caesare  senatusconsul- 
tum  factum  est,  quo  cautum  est, 
ut  si  earn  rem  quisque  legauerit 
quae  eius  numquam  fuerit, 
proinde  utile  sit  legatum,  atque 
si  optimo  iure  relictum  esset  ; 
optimum  autem  ius  est  per 
damnationem  legati,  quo  genere 
etiam  aliena  res  legari  potest, 
sicut  inferius  apparebit. 

§  198.  Sed  si  quis  rem  suam 
legauerit,  deinde  post  testa- 
mentum factum  earn  alienauerit, 
plerique  putant  non  solum  iure 
ciuili  inutile  esse  legatum,  sed 
nee  ex  senatusconsulto  confir- 
mari.  quod  ideo  dictum  est, 
quia  et  si  per  damnationem 
aliquis  rem  suam  legauerit  eam- 
que  postea  alienauerit,  plerique 
putant,  licet  ipso  iure  debeatur 
legatum,  tamen  legatarium  pe- 
tentem  posse  per  exceptionem 
doli  mali  repelli  quasi  contra 
uoluntatem  defuncti  petat. 

§  199.  Illud  constat,  si  duo- 
bus  pluribusue  per  uindicatio- 
Jiem  eadem  res  legata  sit,  siue 
coniunctim  siue  disiunctim,  et 
omnes  ueniant  ad  legatum, 
partes  ad  singulos  pertinere  et 
deficientis  portionem  collega- 
tario  adcrescere.  coniunctim 
autem  ita  legatur  TITIO  ET  SEIO 

HOMINEM    STICHVM     DO    LEGO; 


number,  or  measure,  need  only 
be  the  Quiritarian  property  of  the 
testator  at  the  time  of  his  death, 
for  instance,  wine,  oil,  corn,  ready- 
money  :  other  things  are  required 
to  be  the  testator's  Quiritarian 
property  at  both  periods,  both  at 
the  time  of  his  death  and  at  the 
time  of  making  his  will,  or  the 
legacy  is  void. 

§  197.  However,  this  is  only 
the  civil  law.  In  later  times,  on 
the  proposition  of  Nero,  a  senatus- 
consult  was  passed,  providing  that 
if  a  testator  bequeathed  a  thing 
which  never  belonged  to  him,  the 
bequest  should  be  as  valid  as  if  it 
had  been  made  in  the  most  favour- 
able form ;  the  most  favourable 
form  being  by  condemnation, 
whereby  the  property  of  another 
person  may  be  bequeathed,  as  will 
presently  appear. 

§  198.  If  a  man  bequeath  a 
thing  belonging  to  him,  and  after- 
wards aliene  it,  most  jurists  hold 
that  the  bequest  is  not  only 
avoided  at  civil  law,  but  does  not 
obtain  validity  by  the  senatu scon- 
suit,  the  ground  of  this  opinion 
being  that,  even  when  a  thing  is 
bequeathed  by  condemnation  and 
afterwards  aliened,  although  the 
legacy  is  due  ipso  jure,  a  claim 
to  it,  as  most  jurists  hold,  may 
be  repelled  by  the  plea  of  fraud, 
as  contravening  the  testator's  in- 
tention. 


§  199.  It  is  a  settled  rule,  that 
if  the  same  thing  be  bequeathed 
by  vindication  to  two  or  more 
persons,  whether  jointly  [in  the 
same  sentence]  or  severally  [in 
different  sentences],  and  all  claim 
the  legacy,  each  is  only  entitled 
to  a  ratable  part,  but  a  lapsed 
portion  accrues  to  the  co-legatees. 
A  joint  bequest  is  as  follows : 


n.  §§191-223.1        LEGATORVM  GENERA 

«  «  J 


229 


disiunctim  ita  L.  TITIO  HOMINEM 

STICHVM  DO  LEGO.  SEIO  EVNDEM 
HOMINEM  DO  LEGO. 


§  200.  Ulud  quaeritur,  quod 
sub  condi  clone  per  uindica- 
tionem  legatum  est,  pendente 
condicione  cuius  sit.  nostri 
praeceptores  heredis  esse  putant 
exemplo  statuliberi,  id  est  eius 
serui  qui  testamento  sub  aliqua 
condicione  liber  esse  iussus  est ; 
quern  constat  interect  heredis 
seruum  esse.  sed  diuersae  scho- 
lae  auctores  putant  nullius  in- 
terim earn  rem  esse ;  quod 
multo  magis  dicunt  de  eo  quod 
[sine  condicione]  pure  legatum 
est,  antequam  legatarius  ad- 
mittat  legatum. 

§  201.  Per  damnationem  hoc 
modo  legamus  HERES  MEVS 

STICHVM    SERVVM    MEVM    DARE 

DAMNAS  ESTO  ;  sed  et  si  DATO 
scriptum  fuerit,  per  damna- 
tionem legatum  est. 

§  202.  Eoque  genere  legati 
etiam  aliena  res  legari  potest, 
ita,  ut  heres  red  im  ere  (?'em)  et 
praestare  aut  aestimationem 
eius  dare  debeat. 

§  203.  Ea  quoque  res  quae  in 
rerum  natura  non  est,  si  modo 
futura  est,  per  damnationem 
legari  potest,  uelut  FRVCTVS  QVI 

IN  ILLO  FVNDO  NATI  ERYNT,  aut 
QVOD  EX  ILL  A  ANCILLA  NATVM 
ERIT. 

§  204.  Quod  autem  ita  lega- 
tum est,  post  aditam  heredi- 
tatem,  etiamsi  pure  legatum  est, 
non  ut  per  uindicationem  lega- 
tum continuo  legatario  adquiri- 
tur,  sed  nihilo  minus  heredis 
est.  et  ideo  legatarius  in  per- 
sonam  agere  debet,  id  est  in- 


'  To  Titius  and  Seius  I  give  and 
bequeath  my  slave  Stichus  ; '  a 
several  bequest  as  follows :  '  To 
Lucius  Titius  I  give  and  bequeath 
my  slave  Stichus.  To  Seius  I 
give  and  bequeath  the  same  slave. ' 
§  200.  When  a  condition  is  an- 
nexed to  a  bequest  by  vindication, 
it  is  a  question  who,  pending  the 
condition,  is  the  owner:  my  school 
say,  the  heir,  as  in  the  case  of  the 
slave  conditionally  enfranchised 
by  will,  who  is  admittedly  in  the 
interim  the  property  of  the  heir: 
the  other  school  assert  that  there 
is  no  interim  proprietor,  and  they 
insist  still  more  strongly  that  this 
is  so  in  the  case  of  an  uncon- 
ditional simple  bequest  before  the 
acceptance  by  the  legatee. 


§  201.  A  legacy  by  condemna- 
tion is  in  the  following  form : 
'  Be  my  heir  condemned  to  give 
my  slave  Stichus,'  or  simply,  'Let 
my  heir  give  my  slave  Stichus.' 

§  202.  By  this  form  a  testator 
may  bequeath  a  thing  belonging 
to  another  person,  binding  the 
heir  to  purchase  and  deliver  the 
thing,  or  pay  its  value. 

§  203.  A  thing  which  does  not 
exist  provided  that  it  will  exist  may 
be  bequeathed  by  condemnation, 
as  the  future  produce  of  such  and 
such  land,  or  the  child  to  be  born 
of  such  and  such  female  slave. 

§  204.  A  bequest  in  this  form, 
even  though  no  condition  is  an- 
nexed, unlike  a  bequest  by  vindi- 
cation, is  not  forthwith  on  the 
acceptance  of  the  inheritance  the 
property  of  the  legatee,  but  con- 
tinues the  property  of  the  heir ; 
hence  the  legatee  must  sue  for  it  by 
personal  action,  that  is,  lay  claim 


230 


DE  LEGATIS 


[ii.  §§  191-223. 


tendere  heredem  sibi  dare  opor- 
tere ;  et  turn  heres,  si  (res) 
mancipi  sit,  mancipio  dare  aut 
in  iure  cedere  possessionemque 
tradere  debet;  si  nee  mancipi 
sit,  sufficit  si  tradiderit.  nam 
si  mancipi  rem  tantum  tradi- 
derit nee  niancipauerit,  usuca- 
pione  pleno  iure  fit  legatarii ; 
conpletur  autem  usucapio,  sicut 
alio  quoque  loco  diximus,  mobi- 
lium  quidem  rerum  anno,earum 
uero  quae  solo  tenentur  biennio. 


§  205.  Est  et  ilia  differentia 
huius  {et}  per  uindicationem 
legati,  quod  si  eadem  res  duobus 
pluribusue  per  damnationem 
legata  sit,  siquidem  coniunctim, 
plane  singulis  partes  debentur 
sicut  in  illo  {quod  per}  uindi- 
c&tionem  legatum  est,  si  uero 
disiunctim,  singulis  solid^m 
de&etur.  ita  fit,  ut  scilicet 
heres  alteri  rem,  alteri  aestima- 
tionem  eius  praestare  debeat. 
et  in  coniuTictis  deficientis 
portio  non  ad  collegatarium 
pertinet,  sed  in  hereditate  re- 
maned. 

§  206.  Quod  autem  diximus 
deficientis  portionem  in  per 
damnationem  quidern  legato  in 
hereditate  retineri,  in  per  uin- 
dicationem uero  collegatario 
adcrescere,  admonendi  sumus 
ante  legem  Papiam  hoc  iure 
ciuili  ita  fuisse ;  post  legem 
uero  Papiam  deficientis  portio 
caduca  fit  et  ad  eos  pertinet 
qui  in  eo  testamento  liberos 
habent. 

§  207.  Et  quamuis  prima 
causa  sit  in  caducis  uindicandis 
heredum  liberos  habentiurn, 
deinde  si  heredes  liberos  non 
habeant,  legatariorum  liberos 


that  the  heir  is  bound  to  convey 
it  to  him ;  and  in  this  case  the 
heir,  if  the  thing  is  mancipable, 
ought  to  convey  it  to  him  by  man- 
cipation or  to  surrender  it  before 
a  magistrate  and  deliver  posses- 
sion of  it ;  if  not  mancipable,  mere 
delivery  of  possession  suffices :  for 
if  a  mancipable  thing  is  merely 
delivered  without  mancipation, 
the  legatee  must  acquire  plenary 
ownership  by  usucapion,  and  usu- 
capion,  as  before  mentioned,  in  the 
case  of  movables  requires  a  year's 
possession,  in  the  case  of  landed 
property  two  years'  possession. 

§  205.  There  is  another  differ- 
ence between  bequest  by  vindica- 
tion and  bequest  by  condemnation 
herein,  that  if  the  same  thing  is 
bequeathed  to  two  or  more  by 
condemnation,  if  they  are  named 
jointly,  each  is  entitled  to  a  ratable 
part,  as  in  legacy  by  vindication  ; 
if  severally,  each  is  entitled  to 
the  whole,  and  the  heir  is  bound 
to  convey  the  specific  thing  to 
one,  and  the  value  to  the  other ; 
and  in  a  joint  bequest  a  lapsed 
portion  does  not  accrue  to  the 
co-legatee,  but  belongs  to  the  heir. 


§  206.  The  statement  that  a 
lapsed  portion  in  legacy  by  con- 
demnation falls  to  the  heir,  and  in 
legacy  by  vindication  accrues  to 
the  co-legatee,  be  it  observed,  gives 
the  rule  of  the  civil  law  before 
the  lex  Papia ;  but  since  the  lex 
Papia,  a  lapsed  portion  becomes 
caducous,  and  belongs  to  the 
legatees  who  have  children. 


§  207.  And  although  the  first 
title  to  a  caducous  legacy  is  that 
of  heirs  with  children,  and  the 
second,  if  the  heirs  are  childless, 
of  legatees  with  children,  yet  the 


n.  §§191-223.]        LEGATORVM  GENERA 


231 


habentium,  tamen  ipsa  lege 
Papia  significatur,  ut  collega- 
tarius  coniunctus,  si  liberos 
habeat,  potior  sit  heredibus, 
etiamsi  liberos  habebunt. 

§  208.  Sed  plerisque  placuit, 
quantum  ad  hoc  ius  quod  lege 
Papia  coniunctis  constituitur, 
nihil  interesse  utrum  per  uindi- 
cationem  an  per  damnationem 
legatum  sit. 

§  209.  Sinendi  modo  ita  le- 

ganiUS  HERES  MEVS  DAMNAS 
ESTO  SINERE  L.  TITIVM  HOMI- 
NEM  STICHVM  SVMERE  SIBIQVE 
HABERE. 

§  210.  Quod  genus  legati 
plus  quidem  habet  (quam)  per 
uindicationem  legatum,  minus 
autem  quam  per  damna^onem. 
nam  eo  modo  non  solum  suam 
rem  testator  utiliter  legare  po- 
test,  sed  etiam  heredis  sui ;  cum 
alioquin  per  uindicationem  nisi 
suam  rem  legare  non  potest, 
per  damnationem  autem  cuius- 
libet  extranei  rem  legare  potest. 

§  211.  Sed  siquidem  mortis 
testa toris  tempore  res  uel  ipsius 
testatoris  sit  uel  heredis,  plane 
utile  legatum  est,  etiamsi  testa- 
menti  faciendi  tempore  neutrius 
fuerit. 

§  212.  Quodsi  post  mortem 
testatoris  ea  res  heredis  esse 
coeperit,  quaeritur  an  utile  sit 
legatum.  et  plerique  putant 
inutile  esse.  quid  ergo  est  ? 
licet  aliquis  earn  rem  legauerit 
quae  neque  eius  umquam  fuerit 
neque  postea  heredis  eius  um- 
quam esse  coeperit,  ex  sena- 
tusconsulto  Neroniano  proinde 
uidetur  ac  si  per  damnationem 
relicta  esset. 

§  213.  Sicut  autem  per  dam- 


lex  Papia  itself  declares  that  in 
a  joint  bequest  a  co-legatee  with 
children  is  to  be  preferred  to  heirs 
even  though  they  have  children. 

§  208.  And  most  jurists  hold 
that,  as  to  the  rights  which  the 
lex  Papia  gives  to  joint  legatees, 
it  makes  no  difference  whether 
the  bequest  is  by  vindication  or 
by  condemnation. 

§  209.  A  bequest  by  permission 
is  in  the  following  form  :  '  Be 
my  heir  condemned  to  permit 
Lucius  Titius  to  take  and  to  have 
to  himself  my  slave  Stichus.' 

§  210.  A  bequest  in  this  form 
has  a  wider  scope  than  one  in  the 
form  of  vindication,  but  less  than 
one  in  the  form  of  condemnation, 
for  hereby  not  only  can  the  tes- 
tator's property  be  effectively  be- 
queathed, but  also  that  of  the 
heir,  whereas  by  the  form  of  vin- 
dication the  testator  can  only  be- 
queath his  own  property,  and  by 
the  form  of  condemnation  he  can 
bequeath  the  property  of  any 
stranger. 

§  211.  If  at  the  time  of  the 
testator's  death  the  thing  thus  be- 
queathed belong  to  the  testator  or 
the  heir,  the  bequest  is  valid,  even 
though  at  the  time  of  making  the 
will  it  belonged  to  neither. 

§  212.  If  it  first  belong  to  the 
heir  after  the  death  of  the  testator 
it  is  a  question  whether  the  bequest 
is  valid,  and  it  is  most  generally 
held  to  be  invalid.  However,  even 
though  a  thing  bequeathed  never 
belonged  to  the  testator  or  after 
his  death  became  the  property  of 
the  heir,  by  the  senatusconsult  of 
Nero  all  bequests  are  put  on  the 
same  footing  as  a  bequest  by  con- 
demnation. 

§213.  Justasathingbequeathed 


232 


DE  LEGATIS 


[n.§§  191-223. 


nationem  legata  res  non  statim 
post  aditam  hereditatem  lega- 
tarii  efficitur,  sed  manet  heredis 
eo  usque,  donee  is  [heres]  tra- 
dendo  uel  mancipando  uel  in 
iure  cedendo  legatarii  earn  fe- 
cerit,  ita  et  in  sinendi  modo 
legato  iuris  est;  et  ideo  huius 
quoque  legati  nomine  in  per- 
sonam  actio  est  QVIDQVID  HE- 

KEDEM  EX  TESTAMENTO  DARE 
FACEEE  OPORTET. 

§  214.  Sunt  tamen  qui  pu- 
tant  ex  hoc  legato  non  uideri 
obligatum  heredem,utmancipet 
aut  in  iure  cedat  aut  tradat,  sed 
sufficere,  ut  legatarium  rem 
sumere  patiatur;  quia  nihil 
ultra  ei  testator  imperauit,quam 
ut  sinat,  id  est  patiatur  legata- 
rium rem  sibi  habere. 

§  215.  Maior  ilia  dissensio 
in  hoc  legato  inter uenit,  si 
eandem  rem  duobus  pluribusue 
disimictim  legasti ;  quidam 
putant  utrisque  solidam  deberi, 
[sicutperuindicationem;]  non- 
nulli  occupantis  esse  meliorem 
condicionem  aestimant,  quia 
cum  eo  genere  legati  damnetur 
heres  patientiam  praestare,  ut 
legatarius  rem  habeat,  sequitur, 
ut  si  priori  patientiam  praesti- 
terit  et  is  rem  sumpserit,  se- 
curus  sit  aduersus  eum  qui 
postea  legatum  petierit,  quia 
neque  habe£  rem,  ut  patiatur 
earn  ab  eo  sumi,  neque  dolo 
malo  fecit  quominus  earn  rem 
haberet. 

§  216.  Per  praeceptionem 
hoc  modo  legamus  L.  TITIFS 

HOMINEM  STICHVM  PRAECIPITO. 

§  217.  Sed  nostri  quidem 
praeceptores  nulli  alii  eo  modo 


by  condemnation  does  not  im- 
mediately on  the  acceptance  of  the 
inheritance  belong  to  the  legatee, 
but  continues  to  belong  to  the 
heir  until  by  delivery,  or  man- 
cipation, or  surrender  before  the 
magistrate,  he  makes  it  the  pro- 
perty of  the  legatee ;  so  it  happens 
in  bequest  by  permission,  and 
accordingly  this  form  of  bequest 
is  ground  to  support  a  personal 
action  in  the  terms:  'Whatever 
the  heir  is  bound  by  the  will  to 
convey  or  perform.' 

§  2 1 4.  Although  some  hold  that 
a  bequest  in  this  form  does  not 
bind  the  heir  to  mancipate  or  sur- 
render before  the  magistrate,  or 
convey  by  tradition,  but  is  satisfied 
by  his  permitting  the  legatee  to 
take  the  thing,  as  the  testator 
only  enjoined  the  heir  to  let  him 
have  it. 

§215.  A  more  serious  question 
arises  in  another  point  respecting 
this  form  of  bequest :  if  the  same 
thing  is  bequeathed  severally  to 
two  or  more,  some  hold  that  each 
is  entitled  to  the  whole,  [as  in  be- 
quest by  vindication  (?  condemna- 
tion) ;]  others  hold  that  the  first 
occupant  is  alone  entitled,  be- 
cause as  this  form  of  bequest  only 
condemns  the  heir  to  suffer  the 
legatee  to  have  the  thing,  as 
soon  as  the  first  occupant  has  been 
suffered  to  take  it,  the  heir  is  safe 
against  any  subsequent  claimant, 
as  he  neither  has  possession  of 
the  thing,  so  as  to  let  it  again 
be  taken,  nor  has  fraudulently 
parted  with  possession. 

§  2 1 6.  A  bequest  by  preception 
is  in  the  following  form :  '  Let 
Lucius  Titius  take  my  slave 
Stichus  by  preception  [before 
partition].' 

§  2 1 7.  My  school  hold  that  such 
a  bequest  can  only  be  made  to  one 


ii.  §§  191-223.]        LEGATOKVM  GENERA 


233 


legari  posse  putant,  nisi  ei  qui 
aliqua  ex  parte  heres  scriptus 
esset ;  praecipere  enim  esse 
praecipuum  sumere  ;  quod  tan- 
turn  in  eius  persona  procedit 
qui  aliqua  ex  parte  heres  insti- 
tutus  est,  quod  is  extra  portio- 
nem  hereditatis  praecipuum 
legatum  habiturus  sit. 

§  218.  Ideoque  si  extraneo 
legatum  fuerit.  inutile  est  lega- 
tum ;  adeo  ut  Sabinus  existima- 
uerit  ne  quidem  ex  (senatus)- 
consulto  Neroniano  posse  con- 
ualescere :  nam  eo,  inquit,  se- 
natusconsulto  ea  tantum  con- 
firmantur  quae  uerborum  uitio 
iure  ciuili  non  ualent,  non  quae 
propter  ipsam  personam  lega- 
tarii  non  deberentur.  sed 
luliano  et  Sexto  placuit  etiam 
hoc  casu  ex  senatusconsulto 
confirmari  ]egatum :  nam  ex 
uerbis  etiam  hoc  casu  accidere, 
ut  iure  ciuili  inutile  sit  legatum, 
inde  manifestum  esse,  quod 
eidem  aliis  uerbis  recte  legatur, 
ueluti  per  uindicationem,  p&r 
damnationem,  sinendi  modo ; 
tune  autem  uitio  personae  lega- 
tum non  ualere,cum  ei  legatum 
sit  cui  nullo  modo  legari  possit, 
uelut  peregrine  cum  quo  testa- 
menti  factio  non  sit ;  quo  plane 
casu  senatusconsulto  locus  non 
est. 

§  219.  Item  nostri  praecep- 
tores  quod  ita  legatum  est  nulla 
(alia)  ratione  putant  posse 
consequi  eum  cui  ita  fuerit 
legatum  quara  iudicio  familiae 
erciscundae  quod  inter  heredes 
de  hereditate  erciscunda,  id  est 
diuidunda,  accipi  solet ;  officio 
enim  iudicis  id  contineri,  ut  ei 
quod  per  praeceptionem  lega- 
tum est  adiudicetur. 

§   220.     Vnde    intellegimus 


of  several  co-heirs,  because  precep- 
tion,  or  previous  taking,  can  only 
be  attributed  to  a  person  who, 
taking  as  heir,  over  and  above  his 
portion  as  heir,  and  before  partition 
of  the  inheritance  between  the  co- 
heirs takes  something  as  legatee. 


§  218.  Therefore,  if  a  stranger 
is  given  a  legacy  in  this  form  it 
is  void,  and  Sabinus  held  that 
the  flaw  is  not  remedied  by  the 
senatusconsult  of  Nero,  for  that 
senatuscoiisult  only  cures  verbal 
flaws  which  make  a  bequest  void 
at  civil  law,  not  personal  dis- 
abilities of  the  legatee.  Julian, 
however,  and  Sextus  held  that 
this  bequest  also  is  made  valid 
by  the  senatusconsult,  as  only 
being  avoided  at  civil  law  by  a 
verbal  informality ;  as  appears 
from  the  fact  that  the  very  same 
person  might  take  by  the  bequest 
in  another  form,  as  in  those 
by  vindication,  condemnation,  or 
permission,  whereas  a  personal 
defect  in  the  legatee  only  inva- 
lidates the  legacy,  if  the  legatee 
is  a  person  totally  disqualified 
from  taking  any  legacy  whatever, 
e.  g.  an  alien,  who  is  incapable  of 
taking  anything  under  a  will : 
in  which  case  (they  contend)  the 
senatusconsult  is  clearly  inap- 
plicable. 

§  219.  Again,  my  school  hold 
that  in  this  form  of  bequest,  the 
only  action  by  which  a  legatee 
can  recover  is  the  action  for 
partition  of  an  inheritance,  the 
judge's  commission  including  a 
power  of  adjudicating  a  thing 
bequeathed  by  preception. 


§  220.    From   this   it  follows 


234 


DE  LEGATIS 


[IT.  §§  191-223. 


nihil  aliud  secundum  nostrorum 
praeceptorum  opinionem  per 
praeceptionem  legari  posse,  nisi 
quod  testatoris  sit ;  nulla  enim 
alia  res  quam  hereditaria  de- 
ducitur  in  hoc  indicium,  itaque 
si  non  suam  rem  eo  modo  testa- 
tor legauerit,  iure  quidem  ciuili 
inutile  erit  legatum ;  sed  ex 
senatusconsulto  confirmabitur. 
aliquo  tamen  casu  etiam  alie- 
nam  rem  (j^er)  praeceptionem 
legari  posse  fatentur ;  ueluti  si 
quis  earn  rem  legauerit,  quam 
creditori  fiduciae  causa  manci- 
pio  dederit ;  nam  officio  iudicis 
coheredes  cogi  posse  existimant 
soluta  pecunia  luere  earn  rem, 
ut  possit  praecipere  is  cui  ita 
legatum  sit. 


§  221.  Sed  diuersae  scholae 
auctores  putant  etiam  extraneo 
per  praeceptionem  legari  posse 
proinde  ac  si  ita  scribatur  TI- 

TTVS  HOMINEM  STICHVM  CAPITO, 

superuacuo  adieeta  PBAE  syl- 
laba;  ideoque  per  uindicatio- 
nem  earn  rem  legatam  uideri. 
quae  sententia  dicitur  diui  Ha- 
driani  constitutions  confirmata 
esse. 

§  222.  Secundum  hanc  igitur 
opinionem  si  ea  res  ex  iure 
Quiritium  defuncti  f uerit,  potest 
a  legatario  uindicari,  siue  is 
unus  ex  heredibus  sit  siue  ex- 
traneus ;  quodsi  in  bonis  tantum 
testatoris  fuerit,  extraneo  qui- 
dem ex  senatusconsulto  utile 
erit  legatum,  heredi  uero  fa- 
miliae  erciscundae  iudicis  officio 
praestabitur  ;  quodsi  nullo  iure 
fuerit  testatoris,  tarn  heredi 
quam  extraneo  ex  senatuscon- 
sulto utile  erit. 


that,  according  to  my  school, 
nothing  can  be  bequeathed  by 
preception  but  what  belongs  to 
the  testator,  for  nothing  but  what 
belongs  to  the  inheritance  forms 
the  subject  of  this  action.  If, 
then,  a  thing  that  does  not  belong 
to  the  testator  is  bequeathed  in 
this  form,  the  bequest  is  void  at 
civil  law,  but  made  valid  by  the 
senatusconsult.  In  one  case  they 
admit  that  another  person's  pro- 
perty may  be  bequeathed  by  pre- 
ception, for  instance,  if  a  man 
bequeath  a  thing  which  he  has 
conveyed  by  fiduciary  mancipa- 
tion to  a  creditor,  as  it  is  within 
the  powers  of  the  judge  to  order 
the  co-heirs  to  redeem  the  pro- 
perty by  payment  of  the  mort- 
gage debt,  and  thus  enable  the 
legatee  to  exercise  his  right  of 
preception. 

§  221.  The  other  school  hold 
that  a  stranger  may  take  a  be- 
quest in  the  form  of  preception 
just  as  if  it  were  in  the  form  : 
'Let  Titius  take  my  slave  Stichus,' 
the  addition  [by  preception,  or, 
before  partition]  being  mere  sur- 
plusage, and  the  bequest  being 
in  effect  in  the  form  of  vindica- 
tion ;  and  this  opinion  is  said  to 
be  confirmed  by  a  constitution  of 
the  late  emperor  Hadrian. 

§  222.  According  to  this  view, 
if  the  thing  was  the  Quiritarian 
property  of  the  defunct,  it  can  be 
recovered  in  a  vindicatio  by  the 
legatee,  whether  an  heir  or  a 
stranger,  but  if  it  was  only  the 
bonitarian  property  of  the  tes- 
tator, a  stranger  will  recover  the 
bequest  under  the  senatusconsult, 
an  heir  by  the  authority  of  the 
judge  in  an  action  for  partition  of 
inheritance.  But  if  it  was  in  no 
sense  the  property  of  the  testator, 
either  an  heir  or  a  stranger  may  re- 
cover it  under  the  senatusconsult. 


ii.  §§  191-223.]        LEGATORVM  GENERA  235 

§223.   Sine  tamen  heredibus          §223.  Whether  they  are  heirs, 

secundum    nostrorum    opinio-  according     to     my    school,     or 

nem,  siue  etiam  extraneis  se-  strangers,  according  to  the  other, 

cundum     illorum      opinionem,  if  two  or  niore  legatees  have  the 

duobus    pluribusue    eadem  res  same  thinS  bequeathed  to  them 

coniunctim   aut  disiunctim  le-  Jointly  or  severally,  each  legatee 

gata fuerit,singuli partes  habere  !s  only  entitled  to  a  ratable  Por' 

debent.  tlon' 

§§  194,  19^  Justinian  seems  to  accept  the  Sabinian  view  that  an 
unconditional  legacy  is  acquired  by  the  legatee  immediately  upon 
the  heir's  entrance  on  the  inheritance,  without  his  assent  or  even 
his  knowledge,  though  he  may  subsequently  reject  it :  in  the  latter 
case  the  effect  is  the  same  as  if  the  right  had  never  been  acquired. 
So  also  Justinian  clearly  takes  the  Sabinian  view  on  the  question 
of  interim  ownership  mentioned  in  §  200.  Cf.  Dig.  8,  6,  19,  1. 
The  testamenti  factio  passiva  of  municipalities,  that  is,  their  capacity 
as  juristic  persons  to  be  made  heirs  or  legatees,  has  already  been 
noticed,  1  §§  197-200,  comm.  §  238,  comm. 

§§  196,  197.  Cf.  Si  ea  res,  quae  non  fuit  utroque  tempore  testatoris 
ex  jure  Quiritium,  per  vindicationem  legata  sit,  licet  jure  civili  non 
valeat  legatum  tamen  senatusconsulto  Neroniano  firmatur  quo  cautum 
est  ut  quod  minus  pactis  (aptis  ?)  verbis  legatum  est  perinde  sit  ac 
si  optimo  jure  legatum  esset :  optimum  autem  jus  legati  per  damna- 
tionem  est,  Ulpian,  24,  11  a. 

By  this  senatusconsult  of  the  Emperor  Nero  the  four  forms  of 
legacy  are  not  entirely  abolished,  but  the  importance  of  their  distinc- 
tions is  very  much  diminished.  A  legacy,  by  whatever  form  be- 
queathed, is  henceforth  always  recoverable,  provided  it  could  have  been 
effectively  bequeathed  in  any  form.  As  Sc.  Neronianum  made  legatum 
per  vindicationem  transformable  into  legatum  per  damnationem,  it 
made  legatum  per  praeceptionem  a  species  of  Vindicatio,  similarly 
transformable,  and  capable,  therefore,  of  conferring  res  aliena  as 
well  as  res  testatoris  not  only  on  heres  but  also  on  non-heres.  A 
fortiori  it  made  legatum  sinendi  modo,  a  species  of  legatum  per 
damnationem,  capable  of  bequeathing  res  aliena. 

Subsequently  a  constitution  of  Constantine,  Constantius,  and 
Constans,  A.  D.  339,  which,  as  we  have  already  seen,  abolished  the 
necessity  of  formal  terms  in  instituting  an  heir,  dispensed  with 
them  also  in  the  remaining  testamentary  dispositions :  Et  in  postre- 
mis  ergo  judiciis  ordinandis  amota  erit  sollennium  ser